Andrew George: I am grateful to the Secretary of State for that response. What reassurance can she give the House about the Government's welcome ambitions for a new fleet of express trains and five high-speed routes? On the route to Penzance, as a result of rising sea levels, the line 100 miles away at Dawlish always becomes threatened when high spring tides coincide with strong easterlies. Is the Secretary of State able to factor that into the plans or to make an announcement today that the high-speed route could be rerouted?

Ruth Kelly: The hon. Gentleman from month to month tries to make the case for high-speed rail to Glasgow. I have not set my mind against high-speed lines; it is right that Network Rail considers all the options, particularly how the need for extra capacity might be met. If extra capacity is needed and a new line needs to be built, it must consider whether that line should be high-speed. I do not suggest, as the hon. Gentleman sometimes does, that there is necessarily a huge carbon advantage from high-speed rail. For instance, if a high-speed line were to run between London and Manchester or London and Glasgow, one might expect a carbon advantage, but not the scale of advantage that some hon. Members sometimes suggest.

Gordon Prentice: Six times as many young men under 21 are killed on our roads when driving compared with young women. Young men are the problem, so what are we doing to address that issue?

Theresa Villiers: The right hon. Lady's environmental calculations on Heathrow are under sustained attack. The flight-path proposals from NATS could destroy the tranquillity of much of rural England. Her plans for Stansted make no sense and command no support. Is it not time for her to rethink her "predict and provide" approach to aviation, go back to the drawing board on the environmental data on Heathrow and drop her deeply misguided proposals for a second Stansted runway?

Ruth Kelly: I certainly understand the pressure on people's personal finances. I am determined that we restore passengers' confidence in rail fares, and the hon. Gentleman raises the issue of regulating rail fares. We cap fare increases after inflation to protect passengers from unduly high fare increases. It is worth remembering for a moment that almost half of all rail journeys are made with regulated fares, which are no more expensive in real terms than they were at the time of privatisation, so clearly the regulatory cap is serving a purpose. It is important that we simplify the system and ensure that people are confident that they receive good value for money when they pay a rail fare. The Association of Train Operating Companies has promised to promote price simplification and, ultimately, bring in a price promise, but I think that we may need to go further. That is why I have asked Passenger Focus, the rail passenger representative group, to conduct a study to see what further changes are necessary.

Nia Griffith: I beg to move,
	That leave be given to bring in a Bill to place certain requirements relating to payment of tax in the UK on companies bidding for public contracts; to prohibit the transfer of such contracts overseas; to require companies bidding for public contracts to provide certain information relating to tax payments; and for connected purposes.
	I am glad to have the opportunity to present a Bill that is motivated by fairness and justice—values that are, I am sure, important to every hon. Member. I am not the first to raise the matter in the House: my hon. Friend the Member for Great Grimsby (Mr. Mitchell) tabled early-day motion 1108, for which I commend him.
	Let me begin by informing the House of the Bill's bald and brief title. It is called the Public Contracts (UK Tax Requirements) Bill. If I wished to translate that into the vernacular, I could do no better than direct Members' attention to an article by Professor Prem Sikka on the private finance initiative that appeared in the May edition of the magazine  Chartist . Prem Sikka is professor of accounting at the University of Essex, and I am indebted to him and his research on the complex workings of the PFI for much of the illustrative detail that I shall use to explain the purposes of my Bill.
	I referred to the vernacular. The main heading that appears over Professor Sikka's article reads "Biting the hand that feeds them". As if that were not sufficiently clear, the subheading is even snappier and more explicit: "Prem Sikka on the tax avoidance scam operated by some PFI companies". Not much ambiguity there! Furthermore, tax avoidance is readily understood by the general public, and, in the United Kingdom, condemned as being unfair and unjust.
	That is important. One of the selling points about PFI among the general public is how easy it is to understand in terms of our own lives in a modern, property-owning democracy. The vast majority of people, when buying a house or a flat, take out a mortgage. They agree to pay off their loan plus interest over a period of years, according to the terms of the mortgage. That is why many of the opponents of PFI talk in terms of mortgaging the future of our country. Be that as it may, the concept of borrowing and paying off the loan plus interest has become acceptable to the vast majority of the British people, who, until comparatively recently, even trusted the lender to behave both honourably and competently.
	The private finance initiative is a partnership between public services and private companies. Private companies are paid from the public purse to build, and often to maintain, projects for what may well be a period of 30 years—a bit like our mortgage, the general public might be thinking. The problem is that some companies that have won PFI contracts would appear to have transferred their ownership to a tax haven. In this way, they could avoid paying UK tax on their income and profits. What I find particularly outrageous—and I think the electorate do, too—is that these profits come from the public purse; in other words, the untaxed profits come from hard-earned taxpayers' money.
	The real difficulty is that there is a lack of transparency, and that currently those awarding contracts in the public-private partnerships or PFIs are not required to request sufficient explanation and detail about the tax arrangements of the companies bidding for these contracts. We all understand that large companies will have projects and businesses in many different countries, but the British public want to be sure that their tax money is not going to fund schemes by paying companies that are somehow not paying their full dues in UK tax. There will always be a suspicion that an investment company such as 3i Infrastructure Ltd—which has a 50 per cent. equity stake in Alpha Schools, a company formed to bid for a £134-million project to build and refurbish 11 schools in the Scottish highlands—has a specific reason for being registered in Jersey. A company spokeswoman is reported as saying:
	"Alpha Schools is a company registered in the UK and liable to UK tax. It has two main shareholders: 3i Infrastructure Ltd and Galliford Try—a leading construction firm.
	3i Infrastructure is a Jersey-based investment company. However, the PFI companies in the portfolio of that company are registered and taxed in the UK in the normal way. The post-tax profits from these PFI companies are simply aggregated by 3i Infrastructure, before being passed on to investors."
	Is this really sufficient to allay the public's fears? I suggest not, and that is why we need this ten-minute Bill.
	It is not sufficient that Treasury rules state that Government Departments should pay attention to the "propriety of tax arrangements" of companies involved in public-private partnerships or PFI deals. To reassure the public that such firms are paying the appropriate UK tax for the money that they make on public-private partnerships, we must require firms to make more information available. It is important to note that these proposals do not impose any additional costs on companies, as they already have the information that is required.
	A few minutes ago, I gave what I described as the "bald and brief title" of my Bill. Let me now describe what the Bill would mean in practice. It would mean that public contracts could not be awarded to companies or investors resident outside the UK for tax purposes. It would mean that companies would be forbidden to transfer any aspect of PFI contracts to a location outside the UK. It would mean that all companies bidding for public contracts would have to include a public account of tax payments for the preceding five years. This account would have to include copies of their tax returns and a table showing the jurisdictions that they operate from, together with sales, costs, profits, employees, liabilities and assets in each.
	In conclusion, my Bill is not only designed to tidy up an accounting anomaly. It is, rather, motivated by a sense of the unfairness and injustice that can be allowed by the current arrangements, and, perhaps just as importantly, by a wish to restore the public's confidence that the accounting is transparent and that untaxed profits cannot come from hard-earned taxpayers' money.
	Regardless of what anyone thinks of the underlying principles of PFI, it cannot have been the intention of those who originally gave us the concept to have allowed such tax-funded tax avoidance, but that, in effect, is what we have. This, surely, is a blatant example of the law of unexpected consequences. Having had it brought to our attention, it is surely our duty to put right what has gone wrong, and to replace injustice with justice and inequity with fairness. I commend the Bill to the House.
	 Question put and agreed to.
	Bill ordered to be brought in by Nia Griffith, Gordon Banks, Ms Karen Buck, Mr. David Chaytor, Michael Connarty, Linda Gilroy, Kelvin Hopkins, Mr. Kevan Jones, Ian Lucas, Rob Marris, Ann McKechin and Dr. Alan Whitehead.

Public Contracts (uk Tax Requirements)

Maria Eagle: I beg to move, That the following provisions shall apply to the Criminal Evidence (Witness Anonymity) Bill:
	 Timetable
	1.—(1) Proceedings on Second Reading, in Committee, on consideration and on Third Reading shall be completed at this day's sitting in accordance with the following provisions of this paragraph.
	(2) Proceedings on Second Reading shall (so far as not previously concluded) be brought to a conclusion three hours after the commencement of proceedings on the Motion for this Order.
	(3) Proceedings in Committee, on consideration and on Third Reading shall (so far as not previously concluded) be brought to a conclusion six hours after the commencement of proceedings on the Motion for this Order.
	 Timing of proceedings and Questions to be put
	2. When the Bill has been read a second time—
	(a) it shall (notwithstanding Standing Order No. 63 (Committal of bills not subject to a programme order)) stand committed to a Committee of the whole House without any Question being put; and
	(b) the Speaker shall leave the Chair whether or not notice of an Instruction has been given.
	3.—(1) On the conclusion of proceedings in Committee, the Chairman shall report the Bill to the House without putting any Question.
	(2) If the Bill is reported with amendments, the House shall proceed to consider the Bill as amended without any Question being put.
	4. For the purpose of bringing any proceedings to a conclusion in accordance with paragraph 1, the Chairman or Speaker shall forthwith put the following Questions (but no others)—
	(a) any Question already proposed from the Chair;
	(b) any Question necessary to bring to a decision a Question so proposed;
	(c) the Question on any amendment moved or Motion made by a Minister of the Crown;
	(d) any other Question necessary for the disposal of the business to be concluded.
	5. On a Motion so made for a new Clause or a new Schedule, the Chairman or Speaker shall put only the Question that the Clause or Schedule be added to the Bill.
	6. If two or more Questions would fall to be put under paragraph 4(d) in relation to successive provisions of the Bill, the Chairman shall instead put a single Question in relation to those provisions.
	 Consideration of Lords Amendments
	7.—(1) Any Lords Amendments to the Bill shall be considered forthwith without any Question being put.
	(2) Proceedings on consideration of Lords Amendments shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
	8.—(1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 7.
	(2) The Speaker shall first put forthwith any Question already proposed from the Chair and not yet decided.
	(3) If that Question is for the amendment of a Lords Amendment the Speaker shall then put forthwith—
	(a) a single Question on any further Amendments to the Lords Amendment moved by a Minister of the Crown, and
	(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.
	(4) The Speaker shall then put forthwith—
	(a) a single Question on any Amendments moved by a Minister of the Crown to a Lords Amendment, and
	(b) the Question on any Motion made by a Minister of the Crown that this House agrees or disagrees to the Lords Amendment or (as the case may be) to the Lords Amendment as amended.
	(5) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown that this House disagrees to a Lords Amendment.
	(6) The Speaker shall then put forthwith the Question that this House agrees to all the remaining Lords Amendments.
	(7) As soon as the House has—
	(a) agreed or disagreed to a Lords Amendment, or
	(b) disposed of an Amendment relevant to a Lords Amendment which has been disagreed to, the Speaker shall put forthwith a single Question on any Amendments moved by a Minister of the Crown and relevant to the Lords Amendment.
	 Subsequent stages
	9.—(1) Any further Message from the Lords on the Bill shall be considered forthwith without any Question being put.
	(2) Proceedings on any further Message from the Lords shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
	10.—(1) This paragraph applies for the purpose of bringing any proceedings to a conclusion in accordance with paragraph 9.
	(2) The Speaker shall first put forthwith any Question which has been proposed from the Chair and not yet decided.
	(3) The Speaker shall then put forthwith the Question on any Motion made by a Minister for the Crown which is related to the Question already proposed from the Chair.
	(4) The Speaker shall then put forthwith the Question on any Motion made by a Minister of the Crown on or relevant to any of the remaining items in the Lords Message.
	(5) The Speaker shall then put forthwith the Question that this House agrees with the Lords in all the remaining Lords Proposals.
	 Reasons Committee
	11.—(1) The Speaker shall put forthwith the Question on any Motion made by a Minister for the Crown for the appointment, nomination and quorum of a Committee to draw up Reasons and the appointment of its Chairman.
	(2) A Committee appointed to draw up Reasons shall report before the conclusion of the sitting at which it is appointed.
	(3) Proceedings in the Committee shall (so far as not previously concluded) be brought to a conclusion 30 minutes after their commencement.
	(4) For the purpose of bringing any proceedings to a conclusion in accordance with sub-paragraph (3), the Chairman shall—
	(a) first put forthwith any Question which has been proposed from the Chair but not yet decided, and
	(b) then put forthwith successively Questions on motions which may be made by a Minister of the Crown for assigning a Reason for disagreeing with the Lords in any of their Amendments.
	(5) The proceedings of the Committee shall be reported without any further Question being put.
	 Miscellaneous
	12. Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply so far as necessary for the purposes of this Order.
	13.—(1) The proceedings on any Motion made by a Minister of the Crown for varying or supplementing the provisions of this Order shall (so far as not previously concluded) be brought to a conclusion one hour after their commencement.
	(2) Paragraph (1) of Standing Order No. 15 (Exempted business) shall apply to those proceedings.
	14. Standing Order No. 82 (Business Committee) shall not apply in relation to any proceedings to which this Order applies.
	15.—(1) No Motion shall be made, except by a Minister of the Crown, to alter the order in which any proceedings on the Bill are taken or to recommit the Bill.
	(2) The Question on any such Motion shall be put forthwith.
	16.—(1) No dilatory Motion shall be made in relation to proceedings to which this Order applies except by a Minister of the Crown.
	(2) The Question on any such Motion shall be put forthwith.
	17. The Speaker may not arrange for a debate to be held in accordance with Standing Order No. 24 (Emergency debates)—
	(a) at this day's sitting, or
	(b) at any sitting at which Lords Amendments to the Bill are, or any further Message from the Lords is, to be considered,
	before the conclusion of any proceedings to which this Order applies.
	18.—(1) Sub-paragraph (2) applies if the House is adjourned, or the sitting is suspended, before the conclusion of any proceedings to which this Order applies.
	(2) No notice shall be required of a Motion made at the next sitting by a Minister of the Crown for varying or supplementing the provisions of this Order.
	19. Proceedings to which this Order applies shall not be interrupted under any Standing Order relating to the sittings of the House.
	The motion provides for all the stages of this Bill to be taken today. It provides for six hours of debate in two segments: the first three hours for the debate on this motion and on Second Reading, and the second three-hour segment for Committee, Report and Third Reading. I would be the first to acknowledge that six hours to debate the important issues addressed in this Bill is less than ideal, and it would certainly be undesirable if the emergency legislation today were not to be superseded by a Bill in the next Session allowing much fuller parliamentary scrutiny. However, I would like to explain briefly why we need to press ahead at such speed.
	Following the decision by their lordships in the case of Davis, there is a broad consensus—indeed, we saw it at the time of the statement to the House by my right hon. Friend the Secretary of State for Justice and Lord Chancellor following that judgment—that we need to legislate urgently to restore the power of the courts to make witness anonymity orders in appropriate cases. That is widely accepted by Front Benchers in both Houses, by outside commentators and experts of various kinds, and by the Law Lords themselves. They, in the leading judgment by Lord Bingham, said that urgent legislation may be appropriate. I accept that not everybody would think that, but there is a broad range of people who do. Failure to act quickly could lead to a significant number of ongoing and pending trials having to be abandoned and, potentially, to a large number of appeals against convictions secured, to a greater or lesser extent, on the basis of evidence provided by anonymous witnesses. That is the basis of the need for urgency and the reason the timetable motion is as it is today.

Patrick Cormack: I completely understand the general drift of the hon. Lady's argument and do not quarrel with it. However, I understand that the House of Lords will have two days for the Bill and we have only one. Surely the elected House should have at least as much time as the House of Lords?

Edward Garnier: I want to make it clear at the outset that the official Opposition do not accept the Government's timetable, although we accept the principle behind the need for the legislation. The Bill has not come up on us by surprise. The decision of the judicial Committee of the other place was made two or three weeks ago, but the trial took place as long ago as 2004, the murder took place in 2002 and the Court of Appeal considered the matter in 2006. Throughout that time, I suspect that lawyers within the Government will have been anticipating—if they were not, they should have been—one result or the other. That is to say, a confirmation —[ Interruption. ] If the Home Secretary would keep her mouth shut briefly, we could get on. [Hon. Members: "Oh!"] I mean that quite seriously, Mr. Speaker—

Edward Garnier: I could not be more grateful, Mr. Speaker.
	As I said, the Court of Appeal decision was in 2006 and it must have been within the contemplation of the Government that the House of Lords would either disagree or agree with the Court of Appeal and that contingency arrangements should therefore be arranged. However, we do not deny that there is urgency, artificial or otherwise, when it comes to dealing with the problem. We therefore think that there is some ground for the Government's case for urgency. However, what we are about is a fairly fundamental change in the law as it is now declared.
	We are not talking about a pro forma Bill. Before we got on to this business, we dealt with the Consolidated Fund (Appropriation) (No. 2) Bill, which went through all its stages in about five seconds—

Douglas Hogg: There was an interesting exchange at the end of the speech by my hon. and learned Friend the Member for Harborough (Mr. Garnier). He said that he had not seen the draft Bill until the end of last week, and the Minister made a sedentary intervention to the effect that Ministers had not seen it either. That means that we are actually dealing with Government by decree, or enactment by officials. We are so truncating the parliamentary process that, broadly speaking, we are dealing with a Bill drafted exclusively by officials, and I am against that.
	I am going to say something about the timetable motion, although I am sure that that will cause people to say, "You're taking time out of the substantive debate on Second Reading." That is perfectly true, and there are three answers to that point. First, if we are doing something that is wrong, we should say so, and the only place for that is on the Floor of the House. Secondly, and differently, the Government have chosen to draft the allocation of time motion in such a way that this debate comes out of the time for Second Reading. They did not have to do that, but that was their choice, and I suspect that they made it to truncate debate. In my view, that is scandalous.
	The third answer is that the Government are determined to get this Bill passed today in the form that they want. Anything that we say or do in this Chamber today is utterly irrelevant because the Government have the troops and they intend to push the Bill through. So I make no apology about speaking to the allocation of time motion or for taking time out of the Second Reading debate.
	I move from those points to the substance of what I want to say. This is an important Bill for the kind of reasons that my hon. and learned Friend outlined. It is the kind of Bill that requires serious consideration. It is the kind of Bill that normally would fall within the ordinary parliamentary process—pre-legislative scrutiny, Second Reading, delay, Committee, Report, Third Reading and up to the other place. All of that would allow the Government and hon. Members to consider where they stood and to receive representations from outside. That is not happening today.
	This thing was published on Thursday, rather late. We have had little opportunity to do research and have received little comment from outside. The Government have had little chance to reflect further. That does not alter the fact that they have already tabled five amendments and a new clause, and doubtless they will table others in the other place as well. I am conscious even as I speak that there are amendments that I should have tabled but have failed to do so. I tried to table them in manuscript this morning but, understandably, they were not accepted. The hon. Member for Cambridge (David Howarth) said that we were going to make mistakes, and by God we are. That is the inherent characteristic of legislation of this kind.
	The Bill is actually an example of where we could learn considerably by experience because there is other legislation in place. There is a New Zealand Act—the Evidence Act 2006—which I believe was a consolidation Bill, which means that the legislation had been in place there for some time. It would have been interesting to know the experience in New Zealand and the extent to which the legislation worked for justice or injustice. That is research from which we will not be able to benefit. I understand that in the Netherlands a counterpart piece of legislation is in place. I would have been interested to know what the experience of the Dutch was on a Bill of this kind, but we are going to be denied that.
	There is another point that we need to keep in mind. The House of Lords did not merely decide that the common law power did not exist; it also decided that the protective measures put in place by the trial judge in the case of Davis rendered the trial unfair. So the House of Lords decided the case on two bases—the absence of the common law power and the fact that in any event the protective measures rendered the trial unfair. We need to reflect seriously on how the powers that we propose to take unto ourselves would not have an unfair consequence.
	Let me suggest what we should do. In an ideal world, yes we need to legislate. I am perfectly willing to accept that there is a small number of cases in which witness anonymity orders are appropriate. We need the Law Commission's advice, in my view, and we need research too. I do not believe that we need to get this thing through by the end of this sitting. It is true that there are cases under way. I do not know how many, but there will be some. They can be adjourned. It is quite usual for criminal cases to be adjourned for several months. My proposal is that they should be adjourned until the back end of this year. The appeals could be relisted for the same sort of reasons.
	If there is urgency, I would like to see happen something like the following. The Bill should clear the House by the end of July and go up to the other place, which would consider the Bill in October. Meantime, the Government could embark on proper consultation and seek the advice of the Law Commission. If the Bill needed to be changed as a result of that advice or consultation, amendments could properly be tabled in the other place in October and brought back to this House in October or November. The Bill would then become law by the end of this Session—by December. I believe that that would provide for the degree of urgency that the Government say they require and give this House the opportunity to make a more informed decision as to the merits of what we are doing.
	The Government know that is my position; the Minister perfectly fairly set out my proposals, but I fear they will not be accepted—she made that point plain. In that case, and for that reason, I shall vote against the timetable.

Patrick Cormack: I shall not do that, Mr. Speaker, save to say that I accept what the hon. Member for East Antrim says.
	We are, indeed, discussing the timing, and although I accept the need for urgency and—unlike my right hon. and learned Friend the Member for Sleaford and North Hykeham—the need to get the legislation through before the House rises for the summer recess, I do not accept that we have to do it all in one day. Some intricate arguments will need to take place. I am not a lawyer and I shall probably not take part in those, but I am mindful of the fact that when we legislate in haste, we often get it wrong, although, as the hon. Member for East Antrim reminded me from a sedentary position a while ago, sometimes we can take four years over legislation, as we did on hunting, and still get it wrong.
	Although I accept that the legislation is urgent and necessary, the fact is that we could have had, at the very least, two days. The Under-Secretary of State for Justice, the hon. Member for Liverpool, Garston (Maria Eagle) quite correctly put me right when she said that the other place was having two half days rather than two days of debate, but my hon. and learned Friend the Member for Harborough (Mr. Garnier) responded from the Front Bench by saying that two half days with a period for reflection in between is better than six hours on the trot.
	I realise that the legislation will go through. The hon. Member for Stoke-on-Trent, Central (Mark Fisher) made an impassioned plea for the House to assert its authority, but he knows better than I that the House cannot exert its authority if the Government have a majority and whip the legislation. It is as simple and as depressing as that. On the Liaison Committee last week, I reminded the Prime Minister that if he really wanted to put Parliament back at the centre of the nation's life, he could take away the power of the Executive to impose a timetable on every Bill. I do not know precisely what happened in the usual channels—once famously referred to as the most polluted waterways in Europe—but I do know that it would have been better if the timetabling of this Bill, as of any other Bill, had been in the hands of those who are not entirely the creatures of the Executive or of the shadow Executive.
	So, we will proceed with the Bill. I do not want to make a long speech and delay the debate about the substantial issues, but it is a great pity that the timetabling did not allow for a period of reflection so that we could have returned to the Bill tomorrow or on Thursday. We could have sat one day longer—on 23 July—without any great inconvenience to people. It is fairly inconvenient to come back for two days, a Monday and a Tuesday, so to have added the Wednesday would, frankly, have made the week more justifiable. I rest my case—but I think it is a pity that we are doing things in this way.

Jack Straw: I refer the right hon. and learned Gentleman to the interesting report of the right hon. and learned Member for Rushcliffe (Mr. Clarke).
	The Bill will cover England, Wales and Northern Ireland, and Scotland and the Crown dependencies as well in respect of the service courts. We have, by the way, asked the Scottish Administration whether they would like us to include reference in this Bill for them—they are fully entitled to do so—but their current view is that that is not necessary.

Jack Straw: I shall do my best to do so. I see that the hon. and learned Gentleman has been given "Archbold" to read on the subject: perhaps we can share the page.
	Further background in relation to our ECHR responsibilities is included in the explanatory notes accompanying the Bill, but permit me to quote Lord Mance from the House of Lords judgment. He noted that
	"it may well be appropriate that there should be a careful statutory modification of basic common law principles. It is clear from the Strasbourg jurisprudence...that there is scope within the Human Rights Convention for such modification".
	He went on to say that
	"it is not certain that there is an absolute requirement that anonymous testimony should not be the sole or decisive evidence".
	For good measure, I might add that I noticed from the ever-helpful Library research paper that there is international support—with conditions—for accepting anonymised evidence, described in the United Nations good practice guide.
	The late Lord Denning once warned that
	"in the very pursuit of Justice our keenness may outrun our sureness and we may trip and fall".

Robert Marshall-Andrews: My right hon. Friend has mentioned the law reform, witnesses and victims Bill, which will shortly come before Parliament and will act as the sunset for these provisions. The Bill that we are considering is creating new special measures. Is he aware that there is considerable and widespread concern in the legal profession, on both sides—prosecution and defence—that all special measures are widely over-used to the point of abuse, particularly screening and the use of video links for younger witnesses, who can be as hard as any witnesses in a court? Juries do not like those measures, and they are having a contrary effect to that which was originally intended.

Jack Straw: I am aware about that, not least because of representations that my hon. and learned Friend has made to me. I do not have a sense at the moment of the extent to which special measures, which are distinct from witness anonymity orders, are used. I am happy and ready to follow that up, as we ought to, with my right hon. and learned Friend the Attorney-General, the prosecuting authorities and others. It is important that the measures should be used as an exception and not as the rule.
	In conclusion, I have quoted Lord Denning's warning that too much haste can lead to mistakes. Hon. Members from all parts of the House are well aware of the significance of the legislation and the short time in which it has been prepared and introduced. There is a practical need for it to be passed as soon as possible in order to prevent some of society's most dangerous criminals from escaping justice.
	I am mindful of the principles at stake. More prosecutions do not necessarily mean more justice unless those prosecutions are fair. That is the balance that the legislation seeks to strike. In the time available, we have done our very best with the Bill. I am clear that it is consistent with the European convention on human rights and will ensure a fair trial for the defendant while ensuring protection for victims and the public, which is also very important. I commend the Bill to the House.

Nick Herbert: The House finds itself in an invidious position. In June, the House of Lords held in the case of Davis that measures taken to protect the identities of witnesses were incompatible with common law. As a consequence, a number of current criminal cases have been thrown into doubt and, whatever view one takes, that uncertainty needs to be addressed quickly.
	The Law Lords made it clear, however, that subject to the overriding need for a fair trial there is scope for Parliament to legislate to allow by statute greater use of anonymous evidence than common law permits. The legislation must be consistent with the right to fair trial, not least because it would otherwise be incompatible with article 6 of the European convention on human rights.
	As I said in the House two weeks ago:
	"We recognise our constitutional duty to scrutinise as best we can all legislation...and not to attempt to hinder the Government improperly...My party is committed to working with the Government in a constructive way to deal with this problem".—[ Official Report, 26 June 2008; Vol. 478, c. 517.]
	That is what we have sought to do and I am grateful to the Justice Secretary for his approach. Accordingly, we support the principle behind the Bill, but we have concerns about its scope.

Douglas Hogg: Does my hon. Friend agree that the real problem with the Bill, and it is a problem that affects us all, is that the Davis judgment will be examined to determine witness credibility? The judgment makes it plain that the Davis case was sent back to the Court of Appeal because the common law power that had previously been thought to exist did not in fact exist. Another reason the case was sent to the Court of Appeal was that the exercise of the protective measures—and they are precisely the same as those contemplated in the Bill—made the trial unfair. That problem will arise very often when the credibility of witnesses is at stake. It may stand in the way of the use of the protected measures, because Davis shows that they render a case unsafe.

Douglas Hogg: I am sorry, but my hon. Friend is wrong about that. The case will fall to the extent that the common law power will be replaced by statute, in a sense, so the fact that judges hitherto have made orders that they were not entitled to make will not by itself be grounds for appeal. However, if the protective measures render a trial unfair—as was the case in Davis—the orders will not be made. If they were made, the convictions would be quashed.

Nick Herbert: I invite my right hon. and learned Friend to make those points in greater detail during the Committee stage—not least so that my hon. and learned Friend the Member for Harborough (Mr. Garnier) can answer them. I am afraid that he has lost me.
	I turn now to the weight of the provisions in the Bill, and the considerations against which the court must judge the acceptability of anonymous evidence. The explanatory notes concede that the Bill's statutory framework draws on the model provided by New Zealand's Evidence Act 2006. However, there are a number of significant omissions from the conditions that that legislation set out. The Government have moved already to correct one. Government amendment No. 42 adds a consideration that the court must have regard to whether the evidence from the anonymous witness might be the "sole or decisive" evidence. We pressed for that inclusion: we welcome it and are grateful for the Government's concessions.
	That leaves two considerations that are present in the New Zealand legislation but absent from the Bill—first, that the court should have regard to the gravity of the offence and, secondly, that it should have regard to the principle that witness anonymity orders are justified only in exceptional circumstances.
	It is important for the House to know why the Government have excluded those tests. The Law Society has urged us
	"to ensure that the legislation is robust enough to prevent witness anonymity becoming a routine request that is made in ordinary cases without very good reason. We are very concerned to ensure that these orders will only be used in the most exceptional of cases."
	That is precisely the wording used in the New Zealand legislation.
	Similarly, the chairman of the Bar Council, Tim Dutton, has agreed that allowances must be made where witnesses are in genuine fear for their lives, but warned:
	"We must be careful that anonymity remains the exception to the norm. Such arrangements cannot be offered routinely by prosecuting authorities to witnesses as an incentive to give evidence. It is important to recall...that special measures for witnesses, and in particular anonymity, are only ever required in exceptional circumstances".
	That shows that the Bar Council supports the provisions, but only in "exceptional circumstances".
	The Justice Secretary quoted the article by Assistant Commissioner John Yates in  The Daily Telegraph of 21 June, in which he called for emergency legislation. But Assistant Commissioner Yates also said that special measures to allow witness anonymity
	"should be confined only to the most serious cases."
	We have been told that 580 cases will be adversely affected if we do not continue to allow anonymous evidence, but the Government have confirmed now that only 50 cases involve members of the public as witnesses. Half of the 580 cases involve test purchasers of illicit substances, with only a minority of the 580 representing the most acute cases in terms of timing and risk. The question is, therefore, how many of the cases will, and should, be saved by the legislation? Are we being asked to legislate to secure witness anonymity in the most serious cases, or more widely than that? Clearly, it matters whether the legislation is designed to allow for anonymous evidence in drug cases, where the gravity of the offence is relatively less serious, or whether it should apply only in much more serious cases involving, for instance, terrorism, murder and gang violence, where people's lives may be at stake.
	It is also important that we understand the scale of witness intimidation and whether it is a growing trend. Such intimidation is, after all, not new. Nor has the criminal justice system in this country had problems securing very high-profile convictions in the past without resorting to witness anonymity provisions. As the Law Society has observed,
	"in the past convictions have been achieved without this legislation in notorious cases",
	for example, the Kray and Richardson cases. Furthermore, Members of this House on both sides will be only too aware of the scale of witness intimidation confronting police and prosecutors in Northern Ireland during the troubles—a period in which witness anonymity was explicitly rejected as a solution to the problem of intimidation.
	No one should doubt the effect of witness intimidation in serious criminal cases involving gangs and organised crime. We all want to see violent criminals successfully prosecuted in the interests of public safety, and few want to outlaw anonymity procedures entirely. Certainly, both the Bar Council and the Law Society recognise its importance. Nor do we question the many practical difficulties that the police have in encouraging witnesses—many of them young and vulnerable—to co-operate in giving evidence at a trial, but the Law Society has also noted
	"concern among prosecutors that police officers are too ready to make promises of anonymity pre-trial in circumstances where it is not, or will not be, appropriate."
	Today, the Director of Public Prosecutions, I think in evidence to the Joint Committee on Human Rights chaired by the hon. Member for Hendon (Mr. Dismore), has said that evidence that witness intimidation is growing is "anecdotal". We need a proper assessment of the growth and nature of witness intimidation, and if that is not possible now, the Government should produce it ahead of the law reform, victims and witnesses Bill. We need to ensure that the use of anonymous evidence is proportionate to that assessed threat.
	It is common ground that alternatives to witness anonymity should be preferred. The question is how effective they are. In its briefing on the Bill, Justice emphasises the importance of witness protection. It highlights the fact that in the United States, the Marshal Service boasts that it has never lost a witness under its protection.

Jeremy Corbyn: The hon. Gentleman must be aware that where there is a problem of knife crime among young people and gangs, it is very difficult for the police to get anyone to give evidence unless they can offer some pretty cast-iron guarantees of the safety of witnesses. Otherwise, the police simply will not get any evidence: result—no prosecution, no conviction, and someone who is the leader of a gang that has treated people abominably gets off scot-free and continues causing mayhem in an area.

Nick Herbert: I understand the hon. Gentleman's point. I was going on to give the counter view to the point that Justice was making about the reliability of witness protection schemes as an alternative to the use of anonymous evidence. There are limits to the use of witness protection schemes. As the Court of Appeal noted in its judgment in the case of Davis
	"in reality, and certainly for the individual of good character, with established roots, this kind of programme is unacceptable".
	The judgment added that
	"this process is grossly invasive of the right of the witness and his family to private and family life".
	As Danielle Cable, the fiancée of Kenneth Noye's victim, Stephen Cameron—herself in witness protection—said:
	"I have lost twice—Stephen and my old life."
	Witness protection may not be an alternative to using anonymous evidence, but it is an important means of bringing some cases to justice. At present, there is no statutory witness protection scheme, and provision across police forces is still patchy and sometimes inconsistent. I hope that the law reform, victims and witnesses Bill will address those concerns where this emergency Bill plainly cannot.
	In conclusion, I remind the House of what I said in my response to the Justice Secretary's statement on 26 June. I asked him if he would
	"consider carefully whether it is wise to rush through all stages of the Bill in this place in one day".—[ Official Report, 26 June 2008; Vol. 478, c. 517.]
	I regret that it is exactly what is happening. We have been allocated only six hours to consider these matters as every stage of the Bill is pushed through the House in a single day. We accept the need for legislation to deal with the problem swiftly, but we do not accept that it is necessary to truncate debate and rush consideration in this way. The Government have already tabled amendments to a Bill that they introduced only days ago.
	I welcome the Government's concession that a sunset clause will be written into the Bill to ensure that the provisions are replaced in the forthcoming law reform, victims and witnesses Bill. We pressed for such a provision and I am grateful to the Justice Secretary for conceding it, as it will give the opportunity for more considered legislation and discussion of proposals such as the use of special advocates and special measures. Nevertheless, driving laws through the House in a single day is unwise and unnecessary. It will only add to concerns about the measure, not least in the other place, and is bound to increase the risk that we get something wrong. When both the safety of our communities and the liberty of individuals are involved, that is a serious matter.
	The Bar Council has said:
	"The criminal process is not a static one; its procedures are not frozen in a past era of mythic perfection. But its commitment to a proper balance between the various interests and rights of those caught up in the process remains the same: to do justice in a way that serves the public interest while protecting the rights of the victims of crime, the witnesses in criminal proceedings and those suspected of serious criminal wrongdoing."
	We support the use of anonymous evidence where it can be accepted without prejudicing a fair trial. We understand the need to legislate swiftly to ensure that some serious cases do not fall, but we must ensure that the correct balance is struck. I am grateful to the Government for addressing a number of the concerns we have expressed, and I hope that spirit of constructive debate will continue. Above all, however, we should be concerned that the Bill is properly scrutinised so that justice can be done.

Andrew Dismore: My right hon. Friend the Secretary of State for Justice obviously faced a difficult task in producing the Bill in such a short time, and he has done a pretty good job.
	The Joint Committee on Human Rights, which I chair, has not yet had the opportunity to report on the Bill, although this afternoon we held an evidence session with the Director of Public Prosecutions and Mr. Paddy O'Connor, QC, who gave the defence perspective, so we heard arguments on both sides of the coin and we hope to be able to report before the Bill completes its passage in the other place. My remarks today are my own, although based on the work we have been able to do so far I should be very surprised if there was dissent from other members of the Committee on what I have to say.
	The Bill is broadly to be welcomed from a human rights perspective. It does not purport to prescribe what constitutes a fair trial when anonymous evidence is given, but provides a general framework for the making of discretionary anonymity orders by courts, setting out the sort of considerations that are relevant to the exercise of the court's discretion. The right to a fair trial is adequately guaranteed under the Bill's provisions. In view of the express protection of the right to a fair trial, and the discretion left to the trial judge to determine that question, I accept the analysis in the explanatory notes that the Bill is compatible with article 6 of the European convention on human rights. Having said that, there is always the possibility of improving the Bill, and I hope that we can make some improvements today. I fully accept that the Government amendments that have been tabled make significant improvements, too.
	The Director of Public Prosecutions told us today that convictions principally based on anonymous evidence are not automatically in breach of the article 6 right to a fair trial, and I agree. Strasbourg has not had difficulties with anonymous witness evidence. The real issue is the parameters and the scheme in which the evidence is used. The right to a fair trial is a fundamental one, and not a balanced one, as may have been suggested in some of the remarks that we have heard. Clause 4(4) guarantees that fundamental right. Under the Bill, the right to a fair trial trumps everything else.
	We were told by the DPP that there are 1.3 million prosecutions a year in this country. That gives us perspective, and shows us that witness anonymity is used exceptionally; we are talking about several hundred cases. They are mainly undercover police cases involving drugs or conspiracies. If the suggestion is that such cases are not sufficiently serious, I think that the suggestion is wrong. Clearly, if a drugs officer has his identity revealed in court, he can no longer be effective as a drugs officer in any future case. That may not be a problem for the case in question, but it will certainly affect the police's ability to combat drugs in future.
	The real issue is what the DPP called the civilian cases, in which members of the public are involved; there are 50 of them a year. The DPP stressed the urgency of the issue, and even Mr. O'Connor was not absolute in his opposition to, or criticism of, the need for such anonymous witnesses. Of course it is important that we prosecute those who wish to intimidate witnesses. We should bring cases of conspiracy to pervert the course of justice. Mr. O'Connor believes that convictions for intimidation have doubled. The real issues are the accuracy of the evidence and the credibility of the witness. Those issues do not really arise in undercover police cases or, for example, in cases in which an old lady has accurately recorded the registration number of a getaway vehicle after a bank robbery. A problem arises with witnesses who may themselves be involved in criminality—they may be involved with a rival gang, for example—and the Bill provides for a judge to take that credibility issue into account when deciding whether to grant an anonymity order.
	The DPP told us that there would be fewer cases involving anonymity. The undercover cases would be largely unaffected, but in Trident cases—he thought that there were about 30 Trident cases a year—the criminality of witnesses means that we may well not be able to prosecute all of them, as we do now. He could not give an estimate of how many cases might not be brought. The DPP thought that the process provided by the Bill would throw up cases where credibility would be an issue, particularly as both the judge and any appeal court would know the identity of the witness concerned.
	One of the key issues raised by Mr. O'Connor was the question of where the witness's fear came from. He was concerned—there is possibly some merit in this—that the fear came from police suggestion, rather than being volunteered by the witness. We need to look into police procedure to ensure that the witness is expressing his fear, rather than having fear put into his mind by the police, as that would undermine the whole process. The witness might not be afraid at all until that point.

Andrew Dismore: My concern is that that would become a routine, rather than the exception. However, in those very dangerous cases, the point that the hon. Gentleman makes is a fair one.
	It has been said that we did not have this procedure in the trials of the Richardsons or the Krays, but those gangs were around for years and years, intimidating the east end. If it had been available then, we may well have been able to deal with them at an earlier stage. As far as the Director of Public Prosecutions has been able to establish, there has not been one anonymity case in a magistrates court, and only one in the juvenile courts. It has been suggested that magistrates courts should be excluded, but the fact remains that under counter-terrorism laws, some cases are triable either way, so it is dangerous to suggest that magistrates courts should be entirely excluded.
	Turning to the relevant considerations, the Government have tabled an important amendment on the "sole or decisive" issue, which satisfies a key concern of the European Court of Human Rights. However, we must also consider the issue of the defendant being responsible for intimidation. Mr. O'Connor considered that point, and if the defendant is responsible for intimidation, he can hardly complain about witness anonymity interfering with his article 6 rights. For that very reason, that should be one of the relevant considerations, and it sends a clear message that those who become involved in intimidation should not expect witnesses to give evidence openly against them.
	A number of hon. Members wish to speak, so I shall conclude. As far as I am concerned, the Bill complies with article 6. The Government have moved significantly in their amendments, although there are one or two things we can do to tweak up the Bill today and in the other place. Broadly, however, my right hon. Friend the Justice Secretary has done a very good job in dealing with a very difficult set of circumstances with which he has been faced in a very urgent way.

David Howarth: I fully accept what the hon. Member for Hendon (Mr. Dismore) has said, and that overall the Bill complies with human rights law. However, that does not mean that there are no difficulties—not just practical ones but human rights difficulties—with some of its provisions, and I shall return to that.
	As we are here because of the Davis case, it is important to understand what the court said, and more importantly, did not say. It did not say that anonymous witnesses should never be contemplated, or that anonymity always means that the trial is unfair, although some people at the criminal defence Bar seem to believe that that is so. They think that credibility is always a potential issue, so there is always a problem of that sort. However, the court did not believe that, and I do not believe it.
	There is a balance to be struck between two serious threats to the rule of law. First, we have heard a great deal about the intimidation of witnesses—and I do not want to repeat earlier remarks—which goes to the heart of the judicial system itself. If we cannot get people into court to decide a matter, there is no point having a law in the first place. Therefore, it is a fundamental question about the rule of law. Secondly, on the other hand, unfair trials are themselves a threat to the rule of law. If trials simply become mechanisms for locking up people whom the state wants to lock up, we cease to have law even if we might have some order.
	There has been discussion about whether the problem of the intimidation of witnesses has become worse, and we have discussed the Kray twins, the Richardsons and so on. In other discussions, reference was made to the fact that the problem of witness intimidation goes back to ancient times. It is very difficult to judge whether the problem is getting worse, but it is likely to be growing where gang culture is growing. Whether growing or not, intimidation is a sufficiently serious problem, because it strikes at the heart of the system, for us to take it very seriously indeed. I am with those who say that witness protection is not sufficient, because it is not enough to say to a potential witness, "You have to completely change your entire life—to give up your entire life—just because of this one case." Not many people are going to take up that offer, so we must have measures that fall short of full witness protection.
	Some commentators have said that the issue is not one of balance—that we cannot balance the right to a fair trial against anything else, because it is an absolute right. Even David Pannick, QC, said so in  The Times last week, but I do not think that that is correct. The human right to a fair trial is absolute, but whether that right has been violated in a particular case is a matter of degree. Going beyond that and to echo what has already been said, human rights legislation and the human rights system set a limit on what can be done, but that before we reach it, there is a balance to be struck. The Pannick view is only correct if anonymity always and automatically violates human rights. I do not think that that is correct.
	In the Davis case, the House of Lords did not lay down a bright-line test or say, "If X, Y and Z happened, there must have been a violation of the human rights standard." However, the House of Lords did say—this is the hard case that we all must consider—that in a case in which anonymous witness evidence was the sole or decisive evidence, and in which witness credibility is a real issue, not an issue that the lawyers have made up, it is very unlikely that the granting of a witness anonymity order will pass muster. That is because if credibility is an issue, it strikes at the heart of the trial. It is almost impossible to cross-examine a witness about credibility if one does not know who they are, or one does not know about their tendency to lie or to exaggerate, or about any animus against the defendant. All those things depend ultimately on knowing who the witness is.
	The House of Lords was clear on another matter, too, and we will have to discuss it in detail in Committee of the whole House. The Lords said that if we are to have anonymous witness orders in some circumstances, we must have a clear procedure—a much clearer procedure than that which has grown up in the courts, in the prosecution service and in the police up to now. As the hon. Member for Hendon (Mr. Dismore) said, it cannot be right for the police to offer anonymity as a matter of course in certain cases. It becomes an issue in cases in which a threatening atmosphere has developed on an estate, but as he said, the police offering anonymity can make matters worse because it fuels the existing fear. The idea that anonymity orders should be exceptional is an important one, and I am still anxious because the idea is not in the Bill.

Douglas Hogg: Does that not reinforce the proposition that the appointment of special or independent counsel should be liberally undertaken in such cases? In the disclosure procedure to which I referred my hon. and learned Friend the Member for Harborough (Mr. Garnier) briefly, the special counsel is exceptionally instructed to the court, but does the hon. Gentleman agree that on witness anonymity orders, the special counsel should generally be instructed?

Mark Fisher: The hon. Gentleman talks about evidence. Will he consider the singularity and crucial importance of the evidence to be relevant? Lord Bingham used the words "sole" and "decisive". Are those considerations not as crucial as all the other factors that we are talking about? Are not the nature and particularity of the evidence key if we are to get the balance right?

Douglas Hogg: There is another important characteristic, namely that the police will not as a matter of routine promise anonymity because they will come to realise that the independent counsel investigating the case will say that the factual basis is not made out. Therefore the anxiety about an extension in the numbers of the orders might be reduced.

Jack Straw: I shall only detain the hon. Gentleman for a moment. Not that many of those cases have arisen in the magistrates court, but some have. One case was about a breach of a control order under the Terrorism Acts. In such a case, a breach is an either-way offence, and the defendant must have consented to the magistrates court's dealing with the matter and the prosecution must have made no objection. Therefore, the case stayed in the magistrates court. It was entirely appropriate that it should have done and that an anonymous witness order should have been made.
	There is also the reported case of R  v. Watford Magistrates Court ex parte Lenman and others. The divisional court made a decision, on appeal from the magistrates court, that expressly allowed for witness anonymity orders to be made in the magistrates court in the circumstances of that and similar cases. In that case, the applicants were charged with violent disorder under section 2 of the Public Order Act 1986. A group of youths had rampaged through Watford and violently attacked four persons, one of whom was seriously stabbed. That was also dealt with by the magistrates court and it is entirely appropriate that in such a circumstance the order should be available.

Douglas Hogg: There is always that danger—it arises under existing law in relation to protective measures. If the identity of a witness is screened, it is easy—although it would be wrong—for a jury to come to inappropriate conclusions. It is therefore important that in his or her summing up the judge points out to the jury that the adopting of these measures must not be held against the defendant. To be fair to the Government, there is a specific provision in the Bill saying that that should happen.
	Let me turn briefly to the remaining criteria that should be in the Bill. It is important that we should have specific reference to the independent or special counsel. I recognise that the Government will say that that is within the inherent jurisdiction of the court, but, as the Justice Secretary will know, the matter is dealt with in Archbold, at chapter 12(80)(d), where he will see that it is described as an exceptional power, to be sparingly used. However, having regard to the witness anonymity orders and their implications, it should be generously employed here—and if that is the case, it should be stated in the Bill. I agree with the hon. Member for Cambridge: I strongly suspect, as I am guilty of this as well, that many practitioners did not know of the existing power, which makes it all the more important that it should appear on the face of the Bill.

Robert Marshall-Andrews: Let me start, perhaps uncharacteristically, by congratulating my right hon. Friend the Secretary of State on the Bill, which is small but near-perfectly formed.
	I do not agree—in fact, I fundamentally disagree—with some of the commentary in the press over the past two or three days, which has come from people who not only should know better, but who do not represent, as we do, real people in the real world. I particularly noted the commentary that said that we managed to convict the Kray brothers and the Richardson brothers without laws relating to anonymity. I well remember the extraordinary difficulty that we had in convicting the Kray brothers and the Richardson brothers, and the mayhem, chaos and pain that was caused during the course of the period when we could not convict them, for precisely those reasons. It is no more than common sense to say that we should have sensible anonymity rules, and enshrined in the Bill are very nearly wholly sensible anonymity rules.
	Let me turn to specifics. I hope to take far less than the eight minutes that we have been allotted. I entirely agree that special counsel are wholly appropriate in these circumstances. I was wholly against them when they were mooted in this House, but they have worked very well in terrorism cases, and my experience of them has been nothing but good. The idea has been commendable, and there seems to be no reason why it should not be adopted, particularly in this Bill.
	I, too, would favour a clause that refers to the exceptional nature of the power—not that that would do any good, in truth. As my hon. Friend the Member for Wolverhampton, South-West (Rob Marris) pointed out, the word "exceptional" is in the eye of the beholder; it is merely an adjective that can be used by courts as they so wish. However, it does set a climate—it is very important to do so—in having regard to what is happening at the moment in criminal courts, particular in senior criminal courts, in relation to special measures generally. The Bill will simply add another special measure.
	It is undoubtedly the case, and it is causing widespread concern, that special measures are now being used to such an extent that we are creating a culture of witness protection rather than necessary witness protection. The effect of that, as has been alluded to many times, is that special measures become a form of inducement used by prosecuting authorities to obtain witnesses when those witnesses do not need them and should not have them. Giving evidence is never a pleasant thing, and it is sometimes hard, but that is what citizens are there to do. To create a culture of this kind is ultimately extremely damaging, because people who hear that such provision is available are less likely to give evidence if they do not get it.
	There is another aspect worth considering, if the aim of these measures is, as it undoubtedly is, undoubtedly to obtain more, though just, convictions. Juries do not like them. Juries do not like screening, in particular, and they do not like obtaining evidence by video link when it is plainly unnecessary. Some cases involve the giving of evidence by young people who are as tough as old boots. They may be members of opposing gangs—they often are—and they sit in a separate room, in circumstances of conspicuous comfort, being watched by a jury who are asking themselves time and again, "Why is that man not in this court?" Skilful manipulation of the cross-examination of a witness in those circumstances, by repeated questions such as, "Are you sitting comfortably?", "Is everything all right?", "Do you still feel vulnerable?", "Is this a photograph of you on the top of a bus at the time?" or "Is that your pit bull terrier?" does the cause of justice, in terms of prosecuting people and obtaining convictions, very little good.
	I make a plea now, in advance of the Bill into which these measures are bound to be incorporated in due course, that we do not approach them on the basis that witnesses need more protection. At the moment we have too much, and we need to cut into what is becoming an extremely damaging culture.

Elfyn Llwyd: It is a pleasure to follow the right hon. and learned Member for Folkestone and Hythe (Mr. Howard) and the hon. and learned Member for Medway (Mr. Marshall-Andrews). We have heard several good speeches today, which have been interesting and informative.
	Since the Bill became common knowledge a few days ago, we have all rather been rushing into it. Like the right hon. and learned Member for Folkestone and Hythe, I feel a little uncomfortable with the time given to ensure that we get a proper Bill. I would also say that the Secretary of State for Justice has a difficult job in front of him, with little time to spare. I accept that point. However, the hon. Member for Cambridge (David Howarth) said that he saw this Bill as having been improved in the past few days. If we had a few more days, no doubt it would be greatly improved; it would be a wonderful Bill in about four or five weeks' time. Let us not run away with that idea, however. Although we sometimes get legislation wrong when we rush it through, we took four years on the Hunting Bill and still got it wrong—it is now an unenforceable Act—so we do not always get it right when we take a long time, either.
	I agree broadly that we need some form of statutory footing for anonymity. There is no question about that. The Davis judgment has brought matters to a head, and they had been simmering for some time. As the hon. and learned Member for Medway said, there has been widespread misuse of special measures. In any preliminary hearing, in any Crown court, on any day of the week, the judge will turn to counsel and say, "Any special measures required in this case?" Whether it is a relatively minor case in the Crown court or a serious one, that is a regular occurrence. People are asked whether they want special measures. They might think, in passing, "Yes, I'll have some special measures" and get up and ask for them—and more often than not, they will be granted.
	I am afraid that the practice is falling into misuse. Things have reached the stage where something has to be done. Coming to the Davis judgment and where we are now with the Bill, I hope that all those issues can be brought into sharp focus and that we can look again into what special measures are for. They are measures for special occurrences to be used just as I hope the Bill will be used—infrequently.
	Mr. Bob Jones of the Association of Chief Police Officers says that such occurrences will be very rare. However, the same ACPO presides over a situation in which applications for anonymity are made in 500 to 600 cases a year. They include huge drugs cases, murder cases and so on, and I fully understand all that, but I am sure that in many cases such applications are not necessary. If the Bill is properly implemented, as I hope it will be, it should limit the number of anonymity applications to cases in which they are strictly necessary, to ensure that the interests of justice are met.
	What the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) said about special counsel is quite right, and his suggestion was very useful. He referred to "Archbold", showing immense recollection of the exact provision; he has been there many times in practice, and he assisted us today. What he said is important. If we are to make the Bill work, special counsel should be a core consideration. That will undoubtedly assist the judge and the interests of justice; indeed, it will assist everybody. I hope that the right hon. and learned Gentleman's suggestion, which he advanced very well, will be taken seriously by the Government, although I do not know whether amendments could be introduced in the other place.
	Useful reference has been made to New Zealand's Evidence Act 2006. The criteria that the court must have regard to in making an anonymity order under that legislation are as follows. First, witness anonymity orders are justified only in exceptional circumstances. Secondly, the gravity of the offence must be taken into account. The third criterion—this is interesting; I wonder why there is no reference to this in the Bill—is whether there is other evidence that corroborates the witness's evidence. That is a consideration; it is not necessarily a veto on making the order, but it is an important factor to consider. The judge must have regard to that consideration under the New Zealand Act in making an anonymity order or not doing so.
	In the few minutes left, let me say how grateful I am that the Government have accepted a sunset clause. I hope that we will have some further information about the numbers of applications at that later stage, since the CPS is now keeping a record of all applications made, those granted, those refused and the reasons why, and so on, as the hon. Member for Hendon (Mr. Dismore) helpfully told us. That information will undoubtedly inform the debate when the matter next comes before the House.
	Finally, the amendments that the hon. Member for Cambridge has tabled to clause 3(2) are sensible. In effect, clause 3(2) says that if a defendant wants anonymity for a witness, they have to give full details to the prosecution. Why should the prosecution not do the same for the defence?  [ Interruption. ] The Secretary of State for Justice shakes his head; no doubt he will address that point in due course. If we are serious about the scales of justice and so on, there is an important principle at stake: the equality of arms principle.
	For example, what if the name of the person is leaked by a police source? I am not impugning the police; my brother is a serving officer, as was my father. I am not anti-police in any way, but there are bad apples in every barrel. We have seen several police leaks recently that have caused mayhem here and there. I am concerned that a defendant has to give full details, which could end up anywhere, whereas the prosecution does not.  [ Interruption. ] The Secretary of State will no doubt address that point, so I will not dwell on it.
	In broad terms, the Bill is necessary, but there are improvements that we need to make—and, given more time, I am sure that we would make even more. At the end of the day, as we are on a tight schedule, I hope that we do not create a situation of injustice. That is the last thing that anybody in the Chamber would want. I hope that those in the other place will have slightly more time to reflect on the Bill and that we will be able to introduce some necessary amendments.

Edward Garnier: As the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said at the outset of his remarks, this has been an informative debate, and we are the better for it. However, where there is broad agreement, there is a need for additional caution. It is in debates on Bills such as this that the other place comes into its own. I hope that we will learn from and be advised by its deliberations later this week and next.
	The consensus that has emerged, both from our discussions before this debate and, in particular, during this debate, has not only been consolidated, but has moved subtly on the following issues—issues that I shall come to describe, although they have already been usefully described and considered not only by the Secretary of State and my hon. Friend the shadow Secretary of State, but by the hon. Member for Hendon (Mr. Dismore), who had the advantage of listening to the Director of Public Prosecutions this morning, the hon. Member for Cambridge (David Howarth), who gave us another highly considered contribution, my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg), who as ever came armed with a textbook, the hon. and learned Member for Medway (Mr. Marshall-Andrews), my right hon. and learned Friend the Member for Folkestone and Hythe (Mr. Howard) and, most recently, the hon. Member for Meirionnydd Nant Conwy.
	The consensus that I would draw out from all those contributions centres on the following points. First, we do not want anonymity orders to be used routinely—they should be the exception—and we do want to encourage lazy policing, lazy prosecuting or an informal process to emerge under which such orders become the norm. My experience in the Crown court as a recorder is not quite the same as the experience of the hon. Member for Meirionnydd Nant Conwy. It may just be the luck of the draw, but I find that applications for special measures are quite rare, and those that are made I rarely grant, but there we are.
	We all want sensible and proportionate rules in place for the judges to consider and apply. We want a presumption in favour of openness, because open justice leads to fair justice, and fairness is required under the European convention—and was required under common law—and, whether under common law or the convention, was recognised by the Judicial Committee in the Davis case as essential.
	I suggest—the Government might want to consider my suggestion, both this evening and between now and the Bill's arrival in the other place—that there is also a consensus on special counsel. My right hon. and learned Friend the Member for Sleaford and North Hykeham spoke about that point in interventions and at further length in his speech. I suggest—I am sure that the hon. and learned Member for Medway, who has considerable criminal justice experience as a barrister, would make the same suggestion—that we need to employ special counsel in such cases.
	I would add to the list the need for an objective test of anxiety—that is, an objective assessment of the risk to the anxious witness or those associated with him. We should not allow a witness simply to assert that he is anxious for his safety, his life or his property. I suggest that the judge would be assisted by the intervention of special counsel dispassionately to lay out the facts and help him to reach a just conclusion.
	A consensus has formed on the introduction of a sunset clause, too. A number of amendments and new clauses have been tabled that propose different dates and mechanisms, but the House has come to an agreement—and, through their new clause, the Government have joined that agreement—that a sunset clause is imperative.
	My right hon. and learned Friend the Member for Folkestone and Hythe congratulated the Judicial Committee on not asserting some form of supremacy over this place, but inviting us to do what we should do—legislate to fill the vacuum that its decision has created. Too often nowadays the response to judicial activism is parliamentary abuse, but my right hon. and learned Friend's speech was an exception. Indeed, in all parts of the House today there has been a proper recognition of the need to respect the wisdom and advice of the Law Lords, and to fulfil our duties in dealing with the problem that they have set us. It is now up to us, in the period that remains to us this evening—I trust that it is not controversial to say that we have not enough time in which to scrutinise the Bill properly—to produce a scheme for the provision of anonymous witness orders that meets requirement for the justice in each case, and provides fairness under the rule of law.

Sylvia Heal: With this it will be convenient to discuss the following amendments:
	Government amendment No. 40.
	No. 20, page 2, line 27, leave out 'prosecutor' and insert 'court'.
	Government amendment No. 41.
	No. 2, page 2, line 27, at end add—
	'(3) The court must give every party to the proceedings the opportunity to be heard on the application.
	(4) For the purpose of considering an application for a witness anonymity order the court may appoint an independent counsel to assist the court, and, without limiting the directions that the court may make, the court may direct the independent counsel—
	(a) to inquire into the matters that are set out in sections 4 and 5 and any other matters that the court may think relevant, and
	(b) to report his findings to the court.
	(5) Where an independent counsel has been appointed, the party who applied for the witness anonymity order must make available to the independent counsel all information in relation to the proceeding that is in the party's possession.'.
	No. 18, line 27, at end add—
	'(3) For the purposes of considering an application for a witness anonymity order the judge may appoint a special advocate to represent the interests of the party not present.'.
	No. 19, line 27, at end add—
	'(3) Any application for a witness anonymity order must be made to the court at the earliest opportunity.'.
	No. 36, line 27, at end insert—
	'(3) The application must be heard by the court in chambers and determined on evidence admissible in a criminal trial.'.
	New clause 6— Independent counsel—
	'The court may appoint independent counsel to test any evidence of, and to advise it upon, the witness's fears under section 4(6) and the relevant considerations under section 5(2).'.
	New clause 7— Independent counsel (No. 2)—
	'(1) For the purposes of considering an application for a witness anonymity order, the court may appoint an independent counsel to assist the court.
	(2) The court may direct the independent counsel to investigate on the court's behalf any matter the court thinks fit, subject to any instruction the court thinks fit, and in particular to inquire into any matter referred to in section 4(3), 4(6) or 5(2)(d).
	(3) The party applying for the witness anonymity order must make available to the independent counsel all information relating to the proceeding that is in that party's possession.
	(4) The party applying for the witness anonymity order is responsible for paying the fees of the independent counsel.'.

David Howarth: That is a problem, but it is one that arises in the ordinary case in any event, because in most cases the police are not the primary investigatory tool of the defence. One hopes in a perfect world that they might be, but, as I understand it, that is not how things actually work.
	The problem can be overcome by having one or two independent counsel, depending on whether both sides obtain witness anonymity orders, and for each side to be treated exactly the same. One cannot, however, overcome the problem that the prosecution has at its disposal the forces of the state. It is one of the fundamental problems with criminal prosecution that the state always—or nearly always—has more resources than the defence. That is one of the reasons I agree with the right hon. and learned Gentleman's view about the balance between convicting the innocent and acquitting the guilty.
	I hope that the Government will listen to the case that will be made for having the independent counsel. One view, which I have heard Ministers allude to, is that the judge can do the investigatory work. That is implausible given the judge's other tasks, and it is also implausible to expect a judge who was, for example, a commercial silk suddenly to turn into a criminal defence or prosecution lawyer.  [Interruption.] The hon. Member for Wolverhampton, South-West (Rob Marris) mentions French television. He is right that one of the fundamental aspects of the independent counsel idea is that it introduces an investigatory element into our system, but it does so in a way that preserves some basic adversarial aspects, in so far as the questioning is by a lawyer, not a judge.
	I constantly return to the point that the independent counsel system will protect not only the defendant, in being a safeguard against a miscarriage of justice, but the process itself from cases in which otherwise the court might decide not to grant an anonymity order or cases in which an appeal would be successfully lodged. In the most difficult case of all—the "sole" or "decisive" case—where credibility is an issue, the only hope of getting through the human rights standard is the independent counsel. Therefore, if the Government turn down this method, in effect they will be saying that in future fewer cases will have a chance of succeeding than now.
	The Government asked how the system would work: what process do its proponents envisage? It is true that it is a hybrid between what happens now and what might happen in a more continental system, but fundamentally the independent counsel, as it says in the New Zealand statute, assists the court. The job is to assist the court in deciding whether to grant the order.
	Independent counsel will investigate two matters and report to the judge: whether the need for an anonymity order has been established—whether there is evidence of threat to the safety of the witness, or of the other criteria laid down in statute—and whether the witness lacks credibility. Independent counsel would therefore be of great assistance to the court with both those tasks.
	As I understand it, the Government object to the idea, first, on the ground that it seems complicated. That is true, I suppose, but it does not seem too complicated for the New Zealand courts to operate. Another possible objection is that it might be expensive, but it seems obvious to me that it would be less expensive than fighting appeals—and especially losing appeals.

Geoffrey Cox: What does the hon. Gentleman think should be the test for the judge in listening to the report of the special counsel: that the witness is capable of belief; that he is prima facie telling the truth? What burden should the judge impose on the special counsel to convince him—if its task is to convince him—that they are not to be called as an anonymous witness?

David Howarth: That is an issue for a future debate on a later clause, and I would prefer not to spend the Committee's time on it now. The answer with regard to the independent counsel is that it is investigating according to the standard in the statute—whatever standard that is—and is therefore governed by what the statute says.

David Howarth: I do not want to be accused of anticipating a future debate, but this issue is precisely that raised by the amendment of the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), on whether the standard should be that the court may make an order only if it is satisfied about the conditions, or whether it is sure. The independent counsel would work to whichever of those standards is in the statute, and I do not see how that issue is at all relevant to the question of whether we should have an independent counsel system in the first place.
	The other point that the Government seem to be making is that this issue could be dealt with by issuing guidance on the existing power. The trouble with that is that the existing power appears, first, not to apply to the magistrates court. Secondly, it seems to be exceptional, and, as we have already discussed, it ought to be exercised rather more often than exceptionally. Thirdly, on a practical matter, it is not clear under the existing system exactly who pays and how much. That issue should be dealt with by the statute.

Vera Baird: I doubt whether the situation is as the hon. Gentleman says. As I understand it, magistrates would be able to write to the Attorney-General to ask for a special counsel to be appointed, just as a judge would do, I think, in the more ordinary route. They would not just appoint under inherent jurisdiction, but would write to the Attorney-General asking for an appointment to be made in that fashion. I do not think, therefore, that there is a bar on magistrates courts having such assistance—if assistance it be—but it is very difficult to get a clear view of what special counsel is intended to be at all in this case. Is it to be a person who represents the defence, so that there are no secret things that the defence counsel cannot know, because he must pass them on to his own client? Alternatively, is it, as the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) suggested, really an aid to the judge; or is it, as the hon. and learned Member for Harborough (Mr. Garnier) suggested, somebody who susses out whether the witness is really frightened or not? All three conflict with each other. Is that not the problem with trying to get a provision such as this into legislation now, rather than waiting until we have sorted out what we really want?

David Heath: I really cannot understand the Government's argument that there is a lack of clarity about the counsel's role, given that it is set out explicitly in new clause 7, which is in my hon. Friend's name. What could be more explicit than the phrase
	"an independent counsel to assist the court",
	followed by a reference to the independent counsel's acting on the direction of the court in such a way as the court may see fit?

David Howarth: That appears to be what happens in the New Zealand example, and it is one way in which I would expect the system to work here. This is a way of getting better, higher quality and more defensible decisions from the court when it is required to make the decision that the statute requires it to make.

Edward Garnier: I largely agree with the broad thrust of what the hon. Member for Cambridge (David Howarth) has said and I do not share the confusion that appears to have arisen in the mind of the Solicitor-General. I also accept the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) that if we had more time, these niggles could be ironed out, but we do not, so we will have to do the best that we can.
	While I accept what the hon. Gentleman said about the need for a special advocate, I approach his arguments about amendment No. 35 somewhat differently. Our suggestion is not that the whole of subsection (2) should be deleted, but that the equality of arms that we seek should be achieved through amendment No. 20, which requires the insertion of the word "court" instead of the word "prosecutor" in clause 3(2), so that the court, not the prosecutor, would have to be informed about the identity of the witness.
	I shall not rehearse the arguments about the links between the police and the prosecution system, because that would be tedious and repetitious, but it is important. The Bill and the system of justice would be strengthened were the information to be given to the court, not the prosecutor. If the Government accept amendments relating to the appointment of special counsel or advocates, it would be sensible for the court to include the special prosecutor, because he would be conducting himself for the benefit of the court, albeit by collateral advantage—if he did his job properly, it would be to the benefit of both the warring parties, the prosecution and the defence in any given case.
	I, too, am pleased to note the Government's amendments in relation to the process by which the applications will be made. It must be sensible that those interested should be given an opportunity to be heard and to explain their case—or the resistance to the case—on the application as appropriate. I accept that on some occasions the application will be made, at least initially, ex parte, but it may on occasion be right and just that the matter should be contested inter partes at a later stage.
	However, we urge that any application—this is the thrust of amendment No. 19—for a witness anonymity order must be made to the court at the earliest opportunity. That may be an obvious request, but far too often advocates or lawyers advising either the prosecution or the defence do not apply their minds to the marshalling of the necessary administrative orders until far too late a stage, which delays the speed at which the trial can progress. I urge that any change to the Bill should include a requirement along the lines of amendment No. 19.
	None of the amendments on special advocates were tabled by me or my colleagues on the Front Bench, but I do not think that that matters. What is important is that we get the Bill right. Amendment No. 2, tabled by my right hon. and learned Friend, is an attractive attempt to address the problem, although I do not suggest that he has every dot and comma in the right place or that an inclusion in the Bill of a provision on special counsel should necessarily be in this form. For my part, I dealt with it as a relevant consideration in amendment No. 24 (ai) to clause 5.
	In any case, we all have the same aim—to try to produce a system that preserves fairness as much as possible. Special advocates or independent counsel are no more than a compromise solution, and are by no means ideal. They must surely offend the principle that we expect fearless independent representation for the defendant, untrammelled by interference from the Government, Parliament or other mighty influences. If we are to have anonymous evidence, the court needs assistance in finding the facts on which to make its decision whether to grant an application for an order or not. Necessarily the respondent to an application under clause 2 cannot know the details of the witness which, if published, would negate the purpose of the application.
	The prosecution cannot protect, or be seen to be protecting, the rights and interests of the respondent, albeit that as a matter of professional duty they try to do that. The defendant, or defence witness, has no obvious interest in being open with the prosecution, albeit that those who represent them would, in line with their professional duties, endeavour to be so. We agree that the courts should have the discretion to appoint a special advocate under the Bill, to ensure some fairness in an area of procedure in which unfairness is undeniable and unavoidable. If we are to take away the defendant's fundamental right to know and freely to cross-examine his accuser, we must build into the system mitigating measures, and the special advocate would be one such—albeit imperfect—measure.
	Special advocates are used in cases involving suspected terrorists and control orders, heard by the Special Immigration Appeals Commission. There, they are creatures of statute, not the common law, albeit that in matters affecting disclosure the ordinary courts have an inherent power to appoint special counsel, as my right hon. and learned Friend reminded us. However, they are not the same as the amicus, the friend of the court, brought in to help the court on the law, or as counsel to an inquiry such as the Hutton inquiry. They need precise statutory provision to allow them to exist and they cannot be developed from some imprecise, inherent power.
	The consensus that I identified in my closing remarks on Second Reading does not quite include the amendments on the need for a special advocate, if the interventions by Ministers so far are a true reflection of their position. I hope that at some point—preferably today—the Government will move towards us, just as we have moved towards them on many of the details of the Bill. I am not sure whether the hon. Member for Cambridge (David Howarth) intends to press amendment No. 35 to a Division. If he does, we will follow him, not because we support it, but because we want to use it as a means to demonstrate our support for the special advocate.

Robert Marshall-Andrews: With great respect, if the hon. and learned Gentleman does not mind, I do not want to go down that interesting diversionary route. Public interest immunity is different. PII judges are armed with different considerations and prosecuting counsel has clear lines of inquiry. The concept of informants is well-known. What I am talking about is a witness in a case who might have completely misled the prosecuting authorities about the nature of his role as a witness. I want to concentrate on that for a moment, if the hon. and learned Gentleman does not mind. PII is imperfect, as we all know, but this provision could be very imperfect.
	In such cases, what is necessary is an advocate who knows what the facts are, knows the identity of the witness and can advocate what the judge should do in those circumstances. More than hypothetically—almost certainly—they could say, "It is our submission that you should put into train the following inquiries in relation to this witness before you make a decision. If necessary, you must use the prosecution in order to do so." That would mean that somebody could come back and say, "Yes, on inquiry, they are right. This witness is apparently not the person that he or she appears to be."
	In such circumstances, an advocate is needed. It cannot be done in the abstract. There are two reasons for that. First, advocacy is not a bad idea anyway. Secondly, and more importantly, if the judge says, "I will not do that. I will not put those inquiries in train", there is cause for appeal based on what the judge has said. If one does not have a special advocate, one does not know the basis on which the judge has arrived at that decision, and one never will. That is a hypothetical example.

Robert Marshall-Andrews: I agree entirely. That is a strong tangential point to the one that I hope I am making.
	I would have thought that if one did not have an advocate in such circumstances, the chances that a number of cases would transgress article 6 and other parts of the convention would be very high indeed. An inquiry would take place extra-territorially, which is extremely undesirable when we ought to be able to do it ourselves.
	I have wearied the Committee with this example. I hope that it is thought to be one that is reasonable in the circumstances and likely to occur in a number of serious cases. I have thought about a way around that and I can find none. It prompts one particular question, which has something to do with angels and pins: who precisely does the special counsel represent and what is his role? That is not difficult. The special counsel is manifestly a minister of justice in the same way as everybody else. He is there to see that justice is done. One of his roles is precisely the same as that of a Special Immigration Appeals Commission counsel, who talks to the representative of the terrorist or suspected terrorist who is subject to a control order, finds out what his instructions are, and conveys those instructions back to the tribunal to which he has unique and independent access. I can see nothing wrong with that, but I can see enormous advantages, particularly as it is a power that will be rarely used. It will be used only in the most serious cases and when judges, in accordance with that, perceive the need for that additional power.
	I shall listen with interest to see what the Government say is wrong with that. So far, I have heard nothing on it. I dare say that something will come, but this is an attempt to be as helpful as one possibly can be.

Andrew Dismore: My hon. Friend is entirely right, and it would be appropriate for the prosecution to be able to investigate that. A defence witness is completely different kettle of fish from a prosecution witness. As I have said, the JCHR has not discussed the matter in detail and come to a view on it, but I am giving mine, which pretty much relays what the DPP said to us today.

Jack Straw: That may be so, but the point was absent from the argument of those who said that the importance of the principle of equality of arms closed the argument as to whether, where an application for an order was made by the defence, the real identity of the witness for the defence should be disclosed to the court but not to the prosecution.
	There may well be cases, but I have never heard of one, in which the character of the prosecutor is called into account. It would be extraordinary were that to be the case. Moreover, those acting down the years on behalf of defendants quite properly and rightly have argued that there should be no equality of treatment when it comes to the provision of evidence to the other side. So we have rules under our system whereby not only does the prosecution obviously have to lay the full details of the case that it is going to make in open court before the defence, but it has to disclose sometimes mountains of unused prosecution evidence to the defence. No such equivalent duty is on the defendant, and notwithstanding efforts that have been made by the previous Administration and this one to ensure that the defence ambush the prosecution, and the increasing concerns of the courts to see those rules properly applied, there is and can never be equality there.
	I will deal with what is at the heart of amendment No. 20. There will be rare cases in which the defence properly feels that it should make an application for a witness anonymity order for a defence witness. I guess that the most likely example that could arise is where there is an argument between co-accused. The defence will come forward with its application to the court. It is of great importance that the court knows who the person is. That will be disclosed to the courts even under amendment No. 20, but the court also has to know a good deal about the witness before it can come to a view. The court has no information about the witness. How could it? The only way in which the court could obtain that information is from the prosecutors, who in turn would have to obtain it from the police. On what other basis could the court learn about the antecedents of the witness, who may well have kept them from the defendant? The antecedents may be incomplete.
	Those of us who have to deal routinely, as we all do in the House, with constituents who have criminal records never cease to be amazed at the way in which they forget about the most egregious convictions on their record.
	They remember only convictions of the most trivial nature. Indeed, recently I met a man who was applying for a job in the public service. He had a conviction years ago for being drunk and disorderly and he told me in front of a witness, who does not need to remain anonymous, that it was his sole conviction, so I wrote a gentle, but non-committal, letter. Upon further inquiry by me, it turned out that he did indeed have a conviction for being drunk and disorderly a long time ago, but he also had a recent conviction for quite a serious robbery. When he came back to see me, aggrieved that I had not been able to get him the post in the public service, he said that he had forgotten about that conviction and that in any event it was rather trivial. That sort of thing goes on frequently, so the police would have to make inquiries in such cases.

Jack Straw: I am extremely grateful to the right hon. and learned Gentleman for making my point in a rather more elegant way. That is exactly the point. I understand why the amendment was tabled. It is not that there will not be equality of arms—there will—but there cannot be symmetry in a criminal trial, and thankfully no one has suggested that there would be. The amendment reflects concern to ensure that the protected identity of a defence witness is not somehow leaked. However, another area of no symmetry is that it is inherently improbable that if the prosecutor, or even the police, knew the identity of the defence witness whose identity was being protected they would go round and put the witness's windows in, set fire to their motor car or intimidate their children at school, yet all those things occur in the opposite situation, where the identity of the prosecution witness is being kept quiet.
	I turn to the major issue in respect of this group of amendments—the argument contained in amendments Nos. 2 and 18 and new clauses 6 and 7 that the Bill should include a provision that a special counsel be appointed. I shall set out why I ask the House to accept not that there is a profound case against having special counsel—that is not my argument—but that there is insufficient time, not only today but in the limited time of a week that we have to bring the Bill's proceedings to a conclusion, to pin down exactly how a statutory scheme could work. As we have already heard, there is at least one statutory scheme for the appointment of a special advocate. My hon. Friend the Member for Hendon (Mr. Dismore) was right to make the important distinction about the appointment of a special advocate in respect of the proceedings of the Special Immigration Appeals Commission, which some of us have come to know and love only too well. It was established by the right hon. and learned Member for Folkestone and Hythe (Mr. Howard). I got it going and it has been enhanced since.
	In addition, as we have heard, there is an inherent power for the court to appoint a special counsel. It is not used often and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who drew our attention to an entry in "Archbold", was correct in saying that it is used only exceptionally. As it happens, the Court of Appeal, in the Davis appeal, sought and was granted the appointment of a special counsel. Those who believe that the appointment of a special counsel is a stay in jail card as far as the prosecution is concerned, and a guarantee against any breach of article 6, might bear in mind, notwithstanding the appointment of special counsel and the extensive use of special counsel by the Court of Appeal in the Davis case, that although the Court of Appeal found in favour of the prosecution in Davis, that was not a particularly persuasive point when the case went to the House of Lords Appellate Committee. The fact that there had been special counsel was of no consequence when the Committee reached its 5:0 judgment on whether there was common law authority and, to a degree, article 6 authority.
	I do not dismiss any of the arguments made this evening by my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews)—I was about to say "Maidstone" but that was a Freudian slip. Both constituencies begin with "M" and both are in Kent; both are close to the very first constituency I fought, which was Tunbridge and Malling— [ Interruption. ] I lost. Indeed, I came third and took a pound off the Liberal candidate who was convinced it would be him, so at least I came away from the count with something.
	I listened with great care to what my hon. and learned Friend the Member for Medway said, as I did to the other right hon. and hon. Members on both sides of the House. We have to pin down some serious issues— [ Interruption. ] I gently point out to those who say we should do it now that the matter is really quite complicated and the proposal is not absolutely necessary because, as everybody has accepted, the court already has an inherent power. Those who say we should do it now are also talking about the dangers of legislating too fast and without proper thought.

David Howarth: On amendment No. 35, we have heard that clause 3(2) is not fit for purpose. It tries to deal with too many different sorts of cases. It tries to deal with cases in which the witness does not want information to be passed to the police; cases where the same person is effectively witness for the prosecution and witness for the defence; and cases where the witness is afraid of the other defendants. That confirms my view that the obligation in the clause goes too far. The Government could well think about the clause again and redraft it, but at the moment it seems to be entirely badly drafted.
	I accept the offer from the official Opposition to vote for our amendment on the grounds that, if it were carried, the only plausible way out of the situation—and I think that it is the only plausible way anyway—is to adopt the independent counsel system. It is on that issue that most of the debate has concentrated. Having heard the hon. and learned Member for Medway (Mr. Marshall-Andrews), the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), the hon. Member for Wolverhampton, South-West (Rob Marris) and other contributors, I believe that there is an overwhelming case for using that institution. The Lord Chancellor said that it was no guarantee that cases would be able to proceed that would otherwise not be able to proceed. Because of the Davis case, at a late stage, there was an attempt to use special counsel, but it was not the perfect use of an institution that did not have any statutory basis. There was a lack of clarity about how it would be used, which makes it all the more important that it should be given a statutory basis.
	Nevertheless, the argument is not that independent counsel would guarantee better results, but that it would simply make it more likely that cases that would not otherwise go ahead would disappear from the list. All the arguments effectively come down to time. There is not enough time to get this right, but if we do not do anything, it is quite possible that we will make the situation worse. The Lord Chancellor's argument came down to saying that doing nothing can have no consequences, whereas doing something always has bad consequences. With that in mind, we should vote on amendment No. 35.

Michael Lord: With this it will be convenient to discuss the following amendments:
	No. 4, page 2, line 31, leave out 'C' and insert 'D'.
	No. 21, page 2, line 34, leave out 'safety of the witness or another person' and insert
	'witness or another person from death or serious injury.'.
	No. 5, page 2, line 35, leave out from 'property' to end of line 38.
	No. 6, page 2, line 39, leave out subsection (4) and insert—
	'(4) Condition B is that the making of the witness anonymity order would not deprive the defendant of a fair trial.'.
	No. 7, page 3, line 1, after 'not', insert
	', and could not reasonably be expected to,'.
	No. 8, line 1, at end insert—
	'(5A) Condition D is that there is no reason to believe that the witness has a motive or a tendency to be dishonest, having regard to the circumstances of the case and (where applicable) to the witness's previous convictions or the witness's relationship with the accused or any associates of the accused, and to any other consideration that may be relevant to that issue that the court may think appropriate.'.
	No. 22, line 3, leave out from 'must' to end of line 4 and insert
	'assess the reasonableness of any fear alleged on the part of the witness or another person.'.
	No. 23, line 5, after second 'or', insert 'serious'.
	No. 17, line 5, leave out from 'injury' to the end of line 6.
	No. 32, line 6, leave out 'property' and insert
	'his property, or the property of a close relative of his'.
	No. 31, line 6, at end insert 'or serious financial loss'.
	No. 9, in clause 5, page 3, line 9, leave out 'C' and insert 'D'.
	No. 11, page 3, line 22, leave out paragraph (d).

Douglas Hogg: I rise to speak—I hope fairly briefly—to amendments Nos. 3 to 8, which stand in my name. I shall take the Committee of the whole House through them swiftly. Amendment No. 3 would substitute "sure" for "satisfied". May I explain why? It seems right that the standard of proof required to satisfy the conditions should be the criminal standard—beyond reasonable doubt. I know that the phrase "is satisfied" is often used in legislation, but standing by itself it does not have a clear meaning. The word "sure" does have a clear meaning. I tried to make precisely the same substitution in the Counter-Terrorism Bill, but that was met by the argument that the word "sure" is not readily recognised in statutory language and that the courts gave a fairly clear interpretation to the word "satisfied". However, that argument is not correct.
	The Committee will remember a Court of Appeal decision in the case of Davies—that is indeed a coincidence—this year. It was reported in  The Times of 19 May. The Court of Appeal was required to adjudicate on whether a court, when setting a sentence in a homicide case, had to be satisfied beyond reasonable doubt or on the balance of probabilities about the existence of aggravating factors. In other words, notwithstanding the fact that the word "satisfied" is well known to the courts, the Court of Appeal was asked to define what it meant in that context. Given that, we should use language that makes our meaning clear, and our meaning should be that the court is satisfied beyond reasonable doubt—hence the word "sure" in this context.

Douglas Hogg: My hon. and learned Friend makes a perfectly sound point and a good case. However, the language of subsection (3) goes further:
	"in order to prevent real harm to the public interest".
	Then we come to the identity of particular people or otherwise. I am merely saying that the language of the subsection goes very wide. We should be slow to give immunities of that kind. It is for the Crown to prove its case, so let it do so. The burden rests on the Solicitor-General to satisfy the criterion that there is a good cause.
	Amendment No. 6 would amend condition B to reinforce the principle that the trial must be fair. The Government's drafting is slightly flaccid in that it merely requires the court to be satisfied that the order is
	"consistent with...a fair trial".
	I want to elevate the bar so that the court must be satisfied that the defendant is not deprived of a fair trial. This is modelled on the New Zealand legislation and goes higher than the Government's drafting in protecting the defendant, which is what I want to do.
	Amendment No. 7 asserts that the witness's refusal to testify could be reasonable. I can imagine a lot of circumstances where a witness does not want to testify: because, as the hon. Member for Hendon (Mr. Dismore) suggested, things have been put into their mind by police officers; because they do not want to be cross-examined by difficult counsel such as my hon. and learned Friend the Member for Torridge and West Devon (Mr. Cox); or because the situation is altogether difficult. We should legislate so that, first, the refusal to testify is evidence-based; and, secondly, it is reasonable when tested by the judge or by the special advocate. That is what I want to be done and what the amendment is designed to achieve.
	Amendment No. 8 would insert a new condition, namely condition D. It would create another overarching condition—in effect, that there is no reason to doubt the credibility of the witness. The Bill as drafted provides that issues of credibility are relevant considerations in the making of the order, but that such an issue is not an overarching condition, as are conditions A, B and C. The issue of credibility should be an overarching condition, and that is the intention of condition D as contained in the amendment. I commend the amendments to the Committee.

Edward Garnier: Thank you very much. I am most grateful to the Solicitor-General.  [ Interruption. ] I have argued that already. I am sorry; I am not being very sensible this evening.
	I shall get right back on stream. I would now like to talk about amendment No. 22. This amendment does apply to clause 4(6), and it deals with the difference between an objective and a subjective test. We believe that the point at issue is whether the person who alleges anxiety should have a trump card that destroys the ability of others to resist the application.
	Our courts are for all and are, and must be seen to be, impartial. The criminal law must do justice and ensure fairness. Of course opinions vary and the facts will be different in each case, but one of the bedrocks of our justice system is that our courts and judges must be dispassionate, disinterested and consistent in the application of the law to the facts of a given case. Objectivity is perhaps the one word that describes those imperatives. Any change to the law, judge made or by statute, must ensure that the application of the change is based objectively, rather than subjectively to suit one party or another.
	When we discuss a statute that proposes parliamentary licence for the giving of anonymous evidence in criminal trials, we must be rigorous in ensuring that it is the judge—the arbitrator and guarantor of fairness under the law—who decides and assesses where the balance should lie between, on the one hand, the public and private interest that the defendant should be tried in open court on evidence that is properly and lawfully introduced into the trial and, on the other hand, both the competing private interest of a vital witness that he should be protected from death or serious injury when he performs his public duty to give evidence of a crime and the public interest that serious criminals should be brought to justice.
	That is not an easy task, but it is an essential one. Article 6 of the convention reminds us of our solemn duty to ensure fairness in our trials. Convenience for the police, the prosecuting authorities and the administration of the courts are not the passwords to justice. Therefore, we say that where a witness says that he believes that he will suffer harm if he gives evidence in open court without the protection of a witness anonymity order, his word alone is not enough. The court must decide. The witness cannot produce the ace of personal apprehension to trump the right of the citizen to a fair trial. The Bill as drafted tips the balance too much in favour of anonymity. That needs to be redressed.

Geoffrey Cox: Surely the problem is that condition C requires the judge to be satisfied that the witness would not testify if the order were not made. The question for the judge to decide is what standards he should apply if a witness will not testify, and whether it is reasonable for him not to testify. Under subsection (6), regard must be had to any fear on his part that he will suffer death or injury.
	I commend amendment No. 7, tabled by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). If the wording of clause 4(5)(b) were replaced by the words "the witness could not reasonably be expected to testify if the order were not made", we could import the objective element without needing to amend subsection (6). Others may have more sophisticated thoughts on the subject.

Evan Harris: I am pleased to have the opportunity to address the Committee. I had an amendment in the previous group, but given that it was subsumed entirely in amendments pre-tabled through a feat of nimbleness by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) of which I am not capable in reaching the Public Bill Office—

David Howarth: I have not tabled any of the amendments in this group, but I want to make a couple of comments on some of them. I commend the lead amendment, namely amendment No. 3. The word "satisfied" is simply half a test—one can be satisfied on the balance of probability, on the preponderance of evidence or on some other basis. The question for the Government is whether they intend to leave the second half of the phrase in the hands of the courts, which is one possible approach, or whether they intend something else. That phrase needs to be cleaned up.
	Secondly, amendment No. 5, which concerns the public interest test, seems to leave the clause too broadly drafted. Undercover operations are specifically dealt with in New Zealand statute as undercover operations. In any case, the exposure of most undercover operations would endanger the safety of those operatives. We are looking at the exceptional cases where revelations would endanger undercover agents when what they were trying to do was to prevent serious crime that was not physically dangerous to anyone else or to them if it was revealed who they were. There is probably therefore some need for a clause, but not that one. It needs to be more narrowly drawn.
	On amendment No. 6, I see the point made by the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg). His draft could be construed as more narrow. It is certainly what the New Zealand statute says and for that reason it has an advantage. The distinction seems to be very fine. I could see a circumstance in which one might even do it the other way around. However, I will be interested to hear what the Minister says on that.
	I am not certain about amendments Nos. 8 and 4, which are about making credibility a condition rather than a factor. Credibility appears to me to be a matter of degree rather than an on/off matter. What would happen in a case where there was some doubt about credibility but also corroboration? For that reason, it is probably better as a factor than as a condition, but again I would be interested to hear what the Minister has to say about it.
	On the Conservative amendment No. 21, which would put in "death or serious injury" rather than "safety", I am unsure whether I agree with the point made by the hon. Member for Hendon (Mr. Dismore) about "serious" being a cause of confusion. Indeed, that word might offer some advantage. However, there is a question about somebody who is threatened with abduction. Is that a matter of their safety, whether or not they are threatened with an injury or an assault? There is some argument for the Government's draft as it is — [ Interruption. ] The hon. and learned Member for Harborough (Mr. Garnier) says that there are grounds for both, and that implies some sort of redraft to ensure that both are included.
	On amendment No. 22, which is about reasonableness, I am convinced by the argument made by the hon. Member for Hendon. If one looks at clause 4(6), it plainly refers back to condition A and to nothing else. In so far as it is an objective or subjective test, it is about any reasonable fear. To decide whether a fear is reasonable, one has to assess the reasonableness of the fears. I do not see what would be added by the amendment.

Maria Eagle: The judge is not making a finding of fact that is germane to the outcome of the trial. He is deciding whether he ought to grant a witness anonymity order in the circumstances and the case before him. We are not seeking to turn this into some kind of mini-trial of everything before the judge gets on with the trial. He will use his common sense.
	I have heard what hon. Members have said about some of this. I want to make some points on some of the amendments, but I am obviously not going to be able to satisfy the hon. and learned Member for Harborough (Mr. Garnier) about the tightness with which the provision is drawn. I understand if the hon. and learned Gentleman is not satisfied, but I hope that he will allow me to go on and deal with some of the other amendments.
	Amendment No. 21, which is one of those tabled by the hon. and learned Member for Harborough, would change the first condition for granting a witness anonymity order from one based on the
	"safety of the witness or another person"
	to one based on the risk of "death or serious injury". The main impact of the change of the wording that he has proposed would be to require the court to decide if the risk of injury was serious enough to justify granting an order. Safety is a relatively broad concept—enough to cover any risk of harm to the witness—but the test with which the hon. and learned Gentleman proposes to replace the current wording appears to be inappropriate. It is undesirable for witnesses to be exposed to any risk of harm. However, whether the harm to which a witness is exposed in any particular set of circumstances in a particular case is sufficient to justify the making of an order has to be a matter for the court when it addresses the three conditions set out in the Bill and the framework that we seek to create for that purpose.
	Amendment No. 5 would remove the second limb of the necessity test provided for under condition A—the prevention of real harm to the public interest, which was raised by a number of Members in their contributions to this part of the debate. I need to make it absolutely clear that the purpose of the wording is to capture circumstances in which the intelligence agencies, or, for example, the police or the Serious Organised Crime Agency, are doing their job. Many Members accepted that that was what the wording was getting at, but suggested that it was too wide. If it helps Members, those are the only circumstances intended; I am aware of no other circumstances, beyond national security and the undercover work of the police and relevant agencies, that this part of the Bill is meant to cover. I hope that helps in any Pepper  v. Hart situation that we might run across. There is no other intention in that part of the Bill. The Strasbourg jurisprudence specifically mentioned the reuse of undercover agents as one of the purposes that might justify the grant of anonymity, so we are not outwith wider arrangements in other jurisdictions in that respect.
	Amendment No. 6 would amend the fair trial test with the intention of ensuring—I think—that the defendant is not deprived of a fair trial. I think everybody would accept that that is overwhelmingly the most important purpose of the work we are doing in respect of the Bill, but we believe that the current wording already guarantees it. I know that the right hon. and learned Member for Sleaford and North Hykeham was not too keen on the wording of condition B, which he thought a bit bland. However, condition B has the merit, along with conditions A and C—all of which have to be met—of making it absolutely clear that for the anonymity order to be granted it has to be necessary in the interests of justice and consistent with the defendant receiving a fair trial. In addition, there are article 6 considerations. Although I realise that the right hon. and learned Gentleman is not too keen on the current wording, we believe that it does the job it is meant to do.
	Amendment No. 7 would require the court to take into account before deciding whether it was necessary in the interests of justice to make an anonymity order not only the fact that a witness would not be prepared to testify without an order, but that they could not reasonably be expected to testify without an order. The additional reasonableness test is unnecessary because clause 5(2)(e) already requires the court to consider whether it is reasonably practicable to protect the witness's identity by means other than a witness anonymity order.
	On amendment No. 8, there was some debate about the witness's credibility, which is currently a consideration that the judge should have in mind when deciding whether the three conditions are met before granting the order. The right hon. and learned Gentleman made it clear that the amendment would elevate that consideration to another condition—to move it up a tier in the framework. The amendment is unnecessary because it goes into the question of whether the defendant will have a fair trial, which is already secured by condition B for the making of an order as set out in clause 4(4). The high-level principles of the conditions—necessity, fairness of trial and the interests of justice—are for the court to apply, whereas the credibility of a witness is an aspect in assessing to what extent the trial is fair in the circumstances of the case before the judge who is making the decision. We think that it sits correctly among considerations, rather than being important enough to be a condition, although I understand from the right hon. and learned Gentleman's remarks that he was trying to emphasise the importance of a fair trial. We do not disagree about the importance of a fair trial, but we think that the current framework achieves it.
	Amendments Nos. 17, 22, 23, 31 and 32 would all amend clause 4(6), about which there has been a bit of debate. It sets out the matters to which the court is required to have regard in deciding whether the measures in the order are necessary for the purposes mentioned in subsection (3)(a)—in other words, to protect the safety of the witness or another person, or to prevent serious damage to property.

Maria Eagle: I always speak for myself. I am perfectly happy to go away and have a think about what the hon. and learned Member for Torridge and West Devon (Mr. Cox) says. I am not convinced that he is correct, but I am willing to take another look at what he has had to say.
	Let me swiftly move through the other amendments. Amendment No. 22 would import into subsection (6) a requirement for the court to assess the reasonableness of the witness's fear. I put it to the Committee that the objective is achieved just as effectively by the present wording. It is not clear why fear on the part of another person needs to be added, although my hon. Friend the Member for Hendon made some remarks about his amendment. The risk of harm to another is already caught if it causes fear to the witness. Obviously, the witness may feel that family members would be threatened if they gave evidence. Realistically, if a witness's spouse is in fear, the witness himself or herself might share some of that fear for another family member.
	The significance of fear in this context is the extent to which it inhibits the giving of evidence; it does not relate to whether there is cause for fear, objectively or subjectively. Fear that is experienced only by a third party, and not by the witness, is completely immaterial to whether an anonymity order ought to be granted in a particular case.
	One or two people have queried whether the reference to serious property damage in subsection (6) ought to be there. The protection of property is not the reason for the provision. It is there because a risk of serious damage would in most cases be likely to have an effect on the witness's safety, and certainly on his perception of his safety. That may in turn affect the witness's willingness to give evidence. For that reason, the subsection as drafted covers a reasonable fear on the part of the witness that there would be serious damage to property, as well fear that he or another would suffer death or injury.
	Amendment No. 17 would remove the reference to the requirement for the court to have regard to the witness's fear that there would be serious property damage. To the extent that such a fear is likely to have a bearing on the witness's willingness to give evidence, we believe that it is appropriate for the court to take that into account when deciding whether an order is necessary.
	There has been some discussion of the opinion of the Attorney-General of New Zealand, who considered the compatibility of New Zealand's "fair trial" provision in that country's Evidence Act 2006 with the corresponding provision in clause 4(3)(a) of the Bill. He concluded that
	"it would be an exceptional case where the risk of property damage, without any accompanying risk to persons, could be the basis for a witness anonymity order".
	We agree that the number of cases in which that would be appropriate might be limited, and that the appropriateness would be assessed by the courts on a case-by-case basis, but the vital point is that the Attorney- General of New Zealand did not suggest that the provision itself was incompatible with a fair trial. We are satisfied that the provision is compatible with convention requirements.
	Some cases involve the safety of the witness or another person, and others will involve serious damage to property and engage the safety of the witness or another person. There may be others in which the risk is to property only—for example, threats to blow up the family home—and the risk is destitution for the witness's family, rather than physical injury, but that is not a reason to remove those threats completely from the coverage of anonymity orders. It is down to the judge's discretion, on the facts at the end of the day, and that is how it ought to be.
	Amendment No. 32 provides that the property mentioned in clause 4(6)(b) has to be the witness's own property or that of a close relative, and my hon. Friend the Member for Hendon gave clear reasons for that. I understand his objective in requiring a close link between the property and the witness, but we are not persuaded that it is necessary, as it might prevent the clause from working properly. The condition is that the court is satisfied that the order is necessary to prevent serious damage to property, and the court must have regard to the witness's fear that such serious damage would occur if he were identified.
	I have just about managed to scoot through the amendments, and I hope that on that basis, the wording in the clause will be accepted.

The Second Deputy Chairman: Order. I understand the point of order that the hon. and learned Gentleman is seeking to make, but first we must deal with the amendment.
	 It being six hours after the commencement of proceedings on the motion, The Chairman  put  forthwith  the Question already proposed from the Chair,  pursuant to Order [this day].
	 Amendment negatived.
	The Chairman  then proceeded to put forthwith the Questions necessary for the disposal of the business to be concluded at that hour.
	 Clause 4 ordered to stand part of the Bill.

John Pugh: I feel a residual sense of guilt for keeping the Minister from his home at this time of night. However, I hope to provide a narrative that is sufficiently engaging for bed time. Indeed, its subject is important—it is about a £45 billion investment of immense national and local importance. Before I go any further, I should like to thank the Minister and his officials for their helpful and quick responses to questions that I have asked on this subject; they have been most forthcoming and open in their approach. That is commendable, and it has certainly helped my understanding of the topic.
	It is impossible to object to the Building Schools for the Future programme; after all, no one builds schools for the past. As a former teacher, I have experienced all manner of school buildings—sometimes with pleasure, at other times with distress. I have reached one conclusion: that new and refurbished buildings are neither a necessary nor a sufficient condition for educational progress. Great education can take place in ancient buildings; in fact, it does. Poor education can take place in the most modern buildings imaginable.
	New build certainly helps education in most cases. It can be transformative. It makes pupils and staff feel more confident and valued and encourages educational progress and opportunity. That is why, traditionally, good local authorities have cared for their building stock and the learning environment that it provides. They often worry about whether they will have the resources to keep the stock that they feel pupils, staff and parents merit. That is what local authorities have always done.
	However, what is unique about Building Schools for the Future—I mean in world terms; there is nothing else like it anywhere in the world—is that it is nationally driven, very centralised, time-limited and massively financed. It is an initiative that involves the attempt to replace, remodel or refurbish every secondary school in the country; I think that I am right that that is the ambition. The Children, Schools and Families Committee, the teachers' unions, external commentators and I recognise and in some ways applaud that ambition. However, we also express legitimate concerns about some of the outcomes. I want to group my concerns under two headings: the local and the national.
	First, I turn to the national concerns. The Children, Schools and Families Committee has expressed concern about whether the programme represents the best value for £45 billion of what will ultimately be taxpayers' money. That question is fairly raised in the Committee's report on the programme; I understand that it will revisit the topic in a forthcoming report. The question can be asked, because not all secondary schools are time-expired and semi-derelict. Many primary schools are older; obviously, the case could be made for them to be further up the queue. Furthermore, educational methodology and practice continue to change unpredictably over time. One thinks of the 1970s, when open-plan design was quite the thing, and of how many open-plan schools built in the 1970s acquired walls in the 1990s when educational trends and fashions in the post-Plowden age changed.
	There are inherent dangers in building stock being all of an age. One thinks of the current problems of new towns: what is wrong with one house is normally wrong with the next house, and so on, for street after street. One thinks also of the 1970s and the splurge of buildings, commendable in their way, with flat roofs and wooden structures. They are now sadly dilapidated and look in far worse shape than buildings constructed in the immediate post-war age.
	Nowadays, that is all underscored by the need to have buildings that are sustainable or carbon-neutral, in a world where building technology and material costs are changing rapidly and developing. There are inherent risks to doing it all in one fell swoop; that is not unproblematic. Anticipating the future never has been easy, but having just one go at it is risky compared with the more evolutionary and gradualist path.
	I have other general concerns, about the nature of the long-term financial commitments, their transparency at the point of initiation and, under the private finance initiative, the scope for costly renegotiation at a later date. Recent Public Accounts Committee reports have evidenced fairly well how poor the public sector is at renegotiating effectively. That issue also crossed the mind of the Children, Schools and Families Committee, which raised it in its report. I have concerns about the lack of school autonomy; long-term commitments to manage services provided on a cross-authority basis may not, in the end, be the ideal scenario.
	I have raised elsewhere—I will not do so here—the problem of some of the information and communications technology contracts that seem to cut out our small businesses. As the Minister is probably aware, I have had issues with Becta over that problem. Sometimes companies can lock schools into supply chains under licensed bondage that hinders innovation in school-based ICT. Paradoxically, some of these concerns are met by proceeding in a more measured, thought-through way. Perhaps that is what we will do in more financially stretched times.
	 It being Ten o'clock, the motion for the Adjournment of the House lapsed, without Question put.
	 Motion made, and Question proposed, That this House do now adjourn. —[Liz Blackman.]

Kevin Brennan: I begin by congratulating the hon. Member for Southport (Dr. Pugh) on securing this important debate. Building Schools for the Future is the most significant and most exciting programme of public investment in schools for more than 50 years. I very much welcome the opportunity to discuss it before the House.
	The hon. Gentleman mentioned that he had been a member of the teaching profession, and as a former teacher myself I can confirm that before 1997—and certainly before 1994 when I left the teaching profession—our school buildings were in an extremely poor state, after decades of neglect under previous Governments. I taught in some fairly dodgy buildings during my teaching career, spending a lot of it in temporary portakabins that regularly leaked in the winter. As someone who was born and brought up in a new town, I also understand his point about buildings that are all of the same vintage. I hope that I will be able to put his mind at rest a little during the debate.
	The hon. Gentleman said that the provision of new and refurbished schools is neither a necessary nor sufficient condition for good education—I hope that I recall what he said correctly. Of course, that is the case. It is not enough just to have good buildings. As I hope to show, however, it can make a direct contribution to the education of young people when we improve buildings, and Building Schools for the Future is doing that already.
	Since 1997, including before the current programme, we have taken decisive action about that lack of investment over many decades. We have increased capital investment sixfold in real terms, to £6.4 billion this year, and I do not think that we should apologise for that. Every community has benefited, with more than 1,000 newly built schools and 27,000 new or improved classrooms built—I checked my notes twice before accepting those figures. We have made a remarkable achievement over the past 10 years.
	As the hon. Gentleman said, his constituency is in the local authority area of Sefton and currently falls within waves 10 to 12 of the Building Schools for the Future programme. Based on current plans, the transformation in his area is not due to begin until later in the programme. Given his remarks, perhaps he will feel reassured by that. He will also know that we are currently consulting on changes to the way we prioritise our investment. Later this year, we will invite all the authorities in waves 7 to 15 to revise their expressions of interest. Those revised expressions of interest will then be prioritised into a new national programme. The hon. Gentleman may therefore wish to encourage his local authority to start considering how to revise its expression of interest.
	Sefton has not formally started in Building Schools for the Future, as the hon. Gentleman knows, but is constructively discussing its BSF plans with my Department. I confirm that the private finance initiative will be defined when school plans are firmed up, which will obviously take place in the near future. In the meantime, he will be aware that Sefton local authority and its schools will be receiving capital support of £55.5 million over the next three years. In addition, every typical unmodernised secondary school of 1,000 pupils will receive £113,000 to spend as it wishes on buildings and information and communications technology, with a typical unmodernised primary school receiving £34,000.
	We recognise that local areas such as Sefton will want to begin investing the Building Schools for the Future money, so we have introduced a separate one-school pathfinder scheme, which means that all local authorities can get started on at least one major project in their area. The project in Sefton is Litherland high school, which I understand is not in the hon. Gentleman's constituency, which will receive about £23.68 million. That project is making good progress. The outline business case has been accepted and the local authority envisages construction starting in April 2009.
	We have begun to lay the foundations, but the scale of the challenge is enormous. Eight out of 10 of our schools are more than 30 years old; most were never meant to last as long as they have done. Building Schools for the Future is the Government's response to that situation and to those decades of under-investment. It will refurbish or rebuild every secondary school in England, creating world-class facilities for generations of school children to come.
	The programme is gaining momentum. A total of 13 new or rebuilt Building Schools for the Future schools are now open nationwide, from Newcastle in the north to Bristol in the south. In September, after the summer holidays, a further 22 are expected to open across the country. According to local authority plans, a total of 30 such schools will open this calendar year, rising to around 150 in 2010 and 200 or more per year thereafter. Over the next 15 years, BSF will help to improve the school experiences of 3.3 million young people.
	I understand the points that the hon. Gentleman made in his thoughtful way, but what I have described is a practical expression of what the ambition of the programme—he rightly said that it was an ambitious, massive investment—really is. Sometimes people seem to be saying "That may be all very well in practice, but how will it work in theory?" I do not think that that is what the hon. Gentleman was saying, but it is a practical way of describing the ambition of which he spoke.
	Given the scale and lifespan of the programme, it is crucial that we continue to analyse progress and improve performance so that we deliver the best possible results for the large sum that—as the hon. Gentleman pointed out—the Government are investing.

Kevin Brennan: A capital programme of this scale does have to be audited properly and rigorously, although—and I do not think my hon. Friend was suggesting this—I do not think that profit is a dirty word. Even in a traditionally funded—a publicly funded—capital programme, the contractors would be making a profit from building the schools. There is nothing new about using the private sector to build schools. I do not think we know of any schools in whose building, or indeed maintenance, the private sector has not been involved. However, my hon. Friend is right to suggest that expenditure on this scale needs to be properly audited.
	We have learnt from early delays in some of the projects, which arose largely because the projects focused, rightly, on the areas of greatest social deprivation and educational underperformance: in other words, the most urgent cases. Since the end of 2006, however, we have introduced measures specifically designed to ensure that local authorities are ready to hit the ground running as soon as they enter Building Schools for the Future. Those changes have resulted in significant improvements in delivery timescales, and our recently announced streamlining of the procurement processes will reduce them still further.
	Building Schools for the Future is not just about bricks and mortar; investment on this scale brings huge opportunities for change. We are working with local authorities to make sure that BSF works as a catalyst for the broader educational transformation that we want to see, so that all young people can make the most of their talents and achieve their very best, regardless of their background. As the hon. Gentleman said, the legacy of BSF will be measured not by the numbers of new buildings or the size of classrooms—important though that is—but by the success of the investment in improving the young people's aspirations and the prospects of children and communities across the country.
	Research shows that we are achieving well according to that measure. The National Foundation for Educational Research recently examined the impact of a new environment on students and teachers at one of the first BSF schools, with impressive results. Once the school had moved into its new buildings, 87 per cent. of students felt safe most or all the time, up from 57 per cent. in the previous school buildings; 77 per cent. felt proud of their school, up from 43 per cent.; 61 per cent. said they enjoyed going to school, up from 50 per cent.; and 77 per cent. expected to stay on in the sixth form or go to college, up from 64 per cent. BSF is not just a facelift for schools.

Kevin Brennan: I agree, and I do not think any Government have done as much to promote the pupil voice as this Government, in all sorts of ways. That includes making pupils part of the plans for new schools, and allowing them to own those new schools. That has significantly improved as a result of some of the changes that we have made. As I have said, however, we have seen significant improvements in pupils' experience in a school that has already been built. That does not come directly from us. The National Foundation for Educational Research worked with those pupils and received those findings as a result. This is not, therefore, just a facelift, but it is a thorough renewal that will help pupils enjoy and achieve, position schools right at the core of their communities and help to revitalise local areas.
	We must ensure that it is a renewal that will last. This is a once-in-a-generation programme. We have not seen anything like it for the past 50 years. As a recent Select Committee report on BSF said, we must make sure that its impact is sustainable, and that it continues to inspire long after the smell of fresh paint has faded away.
	Three critical factors will help to ensure that we produce schools fit for the 21st century. First, wide-ranging consultation and careful planning is part of the process. Early engagement and consultation with the whole school community is an important part of the development phase of a BSF project. When a local authority joins BSF, it must produce a strategy for change, which sets out how its investment will support the changing demographics and educational needs of the area. The authority needs to demonstrate that in preparing the strategy it has carried out proper consultation with its stakeholders, and that the resulting strategy has been accepted and is supported by all these groups. Corresponding work is also done at school level, and the local authority must provide the appropriate support for schools to carry it out. In particular, we have engaged with the Sorrell Foundation, notably through the "joinedupdesignforschools" project, to develop best practice in reflecting pupils' views in the design of their schools. However, we recognise that more work needs to be done to explore how schools can more fully involve students and parents in the planning process. We are currently producing guidance material on preparations for BSF, which will include advice on such matters.
	The second key for success is that the buildings themselves must be sustainable. We have already set high standards for sustainability, but we want to go further. We are making an immediate requirement that new school buildings achieve a 60 per cent. carbon emissions reduction, and we are backing that up with £113 million for energy efficiency and renewable energy measures in about 235 new school buildings. For the longer term, we announced in the children's plan, published in December last year, our ambition for zero-carbon new buildings by 2016, and we have now appointed a task force to advise on how this goal can be met. We know this will not be easy, but we have a moral responsibility to future generations to try to achieve it.
	The third issue is information and communications technology-managed services. Advances in information technology have already revolutionised teaching and learning. I am sure that when the hon. Member for Southport, as a former teacher, visits schools, he is as taken aback as I am by the extent to which technology is now integrated right across the curriculum. From interactive whiteboards to online learning resources, just as in the world of work, computers are now at the core of a school's work and are an important means by which young people communicate, express themselves and develop their creativity and learning. Provision for excellent ICT facilities that can adapt to technological developments as they happen is, therefore, essential for any school for the future.
	In addition, the new diploma programme will lead to increasing numbers of students attending courses in more than one location. They will, therefore, need to be able to access their files and resources from a number of locations and from home.

Kevin Brennan: BSF ICT is not a one-size-fits-all system. Individual schools will have the opportunity, through the local choice fund, to specify key ICT resources—hardware and software—while still ensuring full compatibility and integration with a county-wide ICT infrastructure that allows students full access to their personal learning space from locations other than their home schools. I therefore do not accept that this will be a one-size-fits-all approach. It will certainly give individual schools that opportunity, while still ensuring the compatibility and integration that we want to see across the area.
	Building Schools for the Future is the most ambitious programme of investing in our schools for more than a generation, and despite the reservations and concerns expressed by the hon. Gentleman, it will be well received and will be seen as one of the great achievements of this Government.
	 Question put and agreed to.
	 Adjourned accordingly at twenty-seven minutes past Ten o'clock.
	Correction
	 Official Report, 7 July 2008: In column 1158, second paragraph, delete "£4 million pounds", and insert "£400 million".